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
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
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 lawI am thinking of
Romania, for exampleam I to believe that we are worse than
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 cardbut
nothing close to what is happening hereand 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
Q286 Lord Rowlands: So, lack of a
constitutional court brings us into this particular category,
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
centurythat has been overtaken and is now the 21st centurywith
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 countrysuch as for example
the Irish Constitutionyou 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
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.