Surveillance: Citizens and the State - Constitution Committee Contents


Examination of Witnesses (Questions 280-291)

Mr Gareth Crossman, Dr Eric Metcalfe and Dr Gus Hosein

6 FEBRUARY 2008

  Q280  Viscount Bledisloe: As Dr Hosein has just pointed out to us, in other countries the Commissioner is prepared to take on the Government; why should not the Commissioner be prepared to do so in this country?

  Mr Crossman: As I said, the Commissioner is a creature of statutes and the statute sets out the powers that he has, and he does not have enough now.

  Q281  Viscount Bledisloe: They need wider powers?

  Mr Crossman: Absolutely.

  Dr Metcalfe: It is just a very simple suggestion in terms of rationalisation: you could actually scrap the Interception of Communications Commissioner, you could scrap the Surveillance Commissioner, if you have prior judicial authorisation. It is a slightly glib proposal, but if you think about it, the most important function of the Interception of Communications Commissioner and the Surveillance Commissioner should be the authorising of individual warrants. They do not have the time to do that, but there is a large number of magistrates, a large number of judges in this country, who are perfectly able to make those kinds of decisions in relation to search warrants, injunctions and all the other measures that we ask them to authorise. Rather than overburden a single Interceptions of Communications Commissioner, why not have prior judicial authorisation of warrants and you would in fact by that stroke have much better, proper supervision of interception of communications for example.

  Q282  Lord Morris of Aberavon: Is there not a danger on the other side of the coin of all the concentration in one office? With three, you might get somebody out of line, perhaps, who might pinpoint the danger. With everybody under one roof you will only hear one voice.

  Mr Crossman: The trouble is that they operate absolutely independently of each other depending on which tunnel of RIPA you are talking about.

  Q283  Lord Morris of Aberavon: But is there not strength in that?

  Mr Crossman: No. Why is there any reason that the Surveillance Commissioner's Office should need to provide prior authorisation for non-urgent cases involving the police, but the intelligence services not be covered by exactly the same process because they are subject to the regime of another Commissioner, which is the Intelligence Services Commissioner? I do not know why. I am not saying this should happen, to take your point, if you had a statute which set up three commissioner's offices with very clear demarcation for justifiable purposes then, fine. But that is not what has happened. I was not around when RIPA was being proposed, but I imagine what happened was that there was a lot of stamping of feet and people saying, this is our remit, the statute must take this into account. There is no logical rhyme or reason why we have this incredibly Byzantine system.

  Q284  Lord Rowlands: Privacy International produces these global "league tables" and this is for Dr Husein and I think we will move on with it. From the last table that we have had, we come out worse than Romania and on a par with Malaysia, China and Russia. It stretches some of our imaginations that that is the case. I just wonder how robust are such international comparisons?

  Dr Hosein: That is a summary of a 1,200-page report that we released this year. We release every year a report on the privacy practices in currently 70 countries. There was only so much time over the Christmas break for me to create this map, so I limited it to 45 countries that we included in the analysis. It is the second year that we have included such an analysis comparing countries. On top of the 1,200-page report, this is also based on regular communications with privacy officials, parliamentary officials, around the world feeding us information about what is going on in their respective countries. The United Kingdom, for the second year running, has come out as the worst democracy for surveillance for all the reasons we have discussed so far, such as communications surveillance not authorised by independent magistrates, for instance; for the ID card in this country going well beyond the ID card of any other country on earth, perhaps on a par with Malaysia, I believe; no other country on earth is even considering doing mass-compelled finger-printing of its entire population, but this country is insisting up that; medical records being centralised in a single database made accessible widely across the Government services, that is not being considered in other countries; and as we have said already, the UK is home to more CCTVs than any other country around the world. What we found most interesting last year when we released the report was that a number of Governments held press conferences saying that we firmly disagree with the results from Privacy International. The Malaysian Foreign Minister was particularly adamant about his concerns with our work, yet when this Government was asked to comment on it they simply supported it. They said that our surveillance helps combat terrorism and crime.

  Q285  Lord Rowlands: It implies that even with something like the rule of law—I am thinking of Romania, for example—am I to believe that we are worse than Romania?

  Dr Hosein: For what it is worth, Eastern European countries have taken a very strong stance on privacy. They are realising that there are growth areas in this work and Romania is one of the countries leading. It is not to say that Romania is great and Greece scores very highly there too, it is not to say that any of these countries are great, it is just that they are less worse than the others. Last year, the leading countries were Canada and Germany, but they have fallen significantly because the Germans have moved towards the biometric ID card—but nothing close to what is happening here—and they started adopting EU law that they do not have adopt. And the Canadians have enforcement of their regulations.

Lord Rowlands: The way you do it, you have got these boxes and we are worse in some and not in others. The interesting one from the Constitution Committee's point of view is that we are in the worst possible box on constitutional protection, as opposed to statutory protection, where we are not in the worst box. What sort of constitutional protections do you think we need to get ourselves up from the bottom of your league tables?

  Dr Hosein: I am conscious of the fact that I am not a lawyer and I am sitting before the Constitution Committee, so I might show my ignorance on this. Across Europe, not only do countries adhere to ECHR but they also have specific constitutional protections within their own constitutions. When they do not have specific protection, such as in Germany, where there is no explicit right to privacy under the German constitution, in 1983 the German Constitutional Court argued that the protection of privacy is part of Article 1's basic law, which is the protection of human dignity, so that created a fundamental right within German society. There is nothing in US or British law that compares closely to that.

  Q286  Lord Rowlands: So, lack of a constitutional court brings us into this particular category, does it?

  Dr Hosein: The lack of constitutional protections within this country, yes, absolutely.

  Dr Metcalfe: If I might help. I think this goes back to the common law point that we have traditionally protected fundamental rights in this country in a pragmatic way, deciding not to regulate in those particular areas. In the 20th century—that has been overtaken and is now the 21st century—with the equally pragmatic instinct of government to gather as many useful tools as it can together with as much information as it can to do things which it sees as being in the public good. In doing so, the concern over the impact of these various useful tools has been lost. There is the issue of whether we are going to have a British bill of rights and that may provide, certainly if it were to model any other country—such as for example the Irish Constitution—you would expect to see a right to privacy in there.

  Q287  Lord Rodgers of Quarry Bank: I absolutely do not feel oppressed. I have read all the details and how awful it is in this country compared with Greece and Romania and very much like Singapore. Am I deceived?

  Dr Metcalfe: Yes.

  Q288  Lord Rodgers of Quarry Bank: Am I deceived? I do not feel oppressed. Should you be saying to me, "you may not feel oppressed then you ought to be feeling oppressed"? I do not think most members of the public really feel oppressed at the moment.

  Dr Metcalfe: Oppression is not the only harm. I would not describe ourselves as oppressed or that we dwell on the possibility of false consciousness. However, I think that the general public has a very poor appreciation of the extent to which information is held about them by a wide range of public and private bodies and I do not think they fully appreciate the implications. Indeed, do not think any of us fully appreciates the implications. I personally do not know how much information is stored about me and I cannot foresee how that might pan out in the future. The fact that Google keeps all my search engine inquiries for at least two years, for example, how do I know what the implications are of that? These things are unknowable. The information that a person might put in Facebook, for example, or their credit card transactions; I do not have a very good idea of how much information is stored about me and what companies are transferring information, which boxes I have not ticked. I think until you receive a letter from the Treasury explaining to you that your personal details have been lost in the post, and unfortunately your bank account details may now be made public, it is only at that point that you begin to appreciate the potential impact of the amount of information that we store.

  Q289  Baroness O'Cathain: I think you have answered my question about whether we know how much is stored about us and whether it makes any difference. Is it important that the public should be informed and, if it is, whose responsibility is it to inform them? And tracking back to the question I asked you about donor opt-in, opt-out, how could you do it?

  Dr Metcalfe: The first responsibility is on the person collecting the information, or the body or organisation collecting the information. There are certain obligations at the moment to inform the person in relation to data collection, but I think there is a case for making those obligations stronger and more clearly. I also think there is a very strong role for Government in making sure that the implications of data collection are far more clearly spelt out, and particularly the overall principle of transparency in Government that public bodies are much more transparent about the information that they gather.

  Q290  Baroness O'Cathain: Can I just point two warning cones, one is small print that nobody ever reads and the second is trust in government and public bodies. So there are big antis about what you just said.

  Dr Metcalfe: Yes, trust in public bodies, I completely take your point and I also take your point about the small print. However, trust in public bodies reinforces the case for strengthening the role of bodies such as the Information Commissioner; the independent regulatory bodies to make sure.

  Q291  Viscount Bledisloe: Do you have any view as to the relative fact of privacy, which stems from public personal information processes in the public as against the private sector, or is perhaps the greatest risk the increasing interchange of information between the public and the private sector, and vice versa?

  Dr Metcalfe: I would certainly agree with that last point and it is, of course, fair to say that the Government in the last resort has the most power to compel information from individuals. But I refer back to my earlier point about Google, which is an example of a private company which many people use on a daily basis to seek information and the amount of personal and sensitive information that can be gleaned from the inquiries that you make on a computer over the last two years are all held by one private company. I agree that the collection and storage of private information by the private sector is an incredibly important issue.

  Chairman: Dr Metcalfe, can I thank you and Dr Hosein and Mr Crossman very warmly on behalf of the Committee for joining us this morning and for the evidence you have given. Thank you very much indeed.





 
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