Examination of Witnesses (Questions 609-619)
Professor Ian Loader
14 MAY 2008
Q609 Chairman: Professor Loader,
good morning. May I welcome you to the committee and thank you
for coming. Perhaps, as we are being recorded, you could identify
yourself for the record.
Professor Loader: I am Professor Ian
Loader. I am Director of the Centre for Criminology at the University
of Oxford and a Fellow of All Souls' College.
Q610 Chairman: May I begin by asking
what constitutional or legal issues are engaged by using mass
and individual surveillance in the pursuit of national and personal
security? Is there any evidence that surveillance has a chilling
effect on citizens' ability to enjoy freedom of association or
expression?
Professor Loader: Can I come to that
question indirectly because what one thinks about the constitutional
implications of mass and individual surveillance rather depends
on how one analyses the situation we are in and how we got here.
It seems to me that that situation is best characterised by a
circumstance where governments and security institutions increasingly
pursue a certain conception of what security means—and I
am happy to talk more about how I think we might otherwise think
about security—which requires ever-increasing numbers of
measures in order to pursue the thing that we want to achieve.
The thing we want to achieve is the reduction or elimination of
risk. This means, I think, that we as a society have established
a certain kind of both speed and direction of travel of which
the development of mass surveillance measures and/or individual
target surveillance measures are but a part. This has been brought
home to me because for the first time in many years I was searched
under Section 44 of the Terrorism Act while waiting to come in
here, but that is by the bye, because I was sat in Parliament
Square of course. The sheer amount of criminal justice legislation,
of new measures and new Acts and new criminal offences seem to
me part of a pattern of how our society responds to threats of
crime, terrorism and anti-social behaviour, of which the main
practices are but a part but a significant part. The speed, it
seems to me, to have something to do with that general sense of
escalation of activity and what I have elsewhere called legislative
hyperactivity. By the direction, I sometimes think that surveillance
measures in general, and let us take closed-circuit television
cameras as an example, are what you might describe as destined
to succeed. If it can be established that they have been a success
in reducing levels of crime or fear of crime, then the answer
is that we need more of them. If it can be established that they
have not succeeded, then the answer is always that we need more
of them. Indeed the Metropolitan Police said something along these
lines only just last week. It seems to me that the consequence
of that is that there is a ratcheting up process going on here.
In other words, that once you put certain kinds of measures in
place, it becomes very difficult to imagine the circumstances
in which you could successfully take them away again, either legally,
politically or culturally. Therefore, the direction of travel,
once established, is quite difficult to halt. If one takes that
as the starting point, and it is mine at any rate and I will happily
say more about it, then it seems to me that there are the following
constitutional implications. The obvious one is that what we are
talking about here is the relationship between the individual
citizen and the state. The extent, intrusiveness and measures
we use to think about and control surveillance practices and anti-crime
practices more generally are at the heart of that question. Secondly,
in this environment we have become rather keener as a society,
as a government, as a legislator—and in times of heightened
uncertainty and concern about crime or anti-social behaviour or
terrorism you can see why this happens—in thinking of the
measures that we put in place to prevent or protect us from those
threats than we do about systems of accountability, oversight,
monitoring, redress and so on. There is a certain lag in our capacity
to become enthusiastic about certain things and in the kinds of
institutional mechanisms that we put in place in order to try
to subject these anti-crime practices to certain types of control.
Thirdly, it seems to me that what follows constitutionally from
the analysis I have just briefly sketched is that what our society
currently lacks is a series of mechanisms that enables us routinely
to pause, reflect and ponder the judiciousness, wisdom or consequences
of the particular kinds of measures that we are putting in place
to pursue security; in other words, to pose the question: when
is enough enough and do we need another round of this legislation
this year of a similar kind to what we had last year? Do we need
this or that power? What constitutionalism does in that context
at its best is put in place precisely those mechanisms that allow
us to decide how we are going decide—to pause, reflect and
develop cultures and practices of justification. It seems to me
at least that that is a significant part of what is at issue currently
in this discussion. I am happy to pause there. I can talk about
chilling if you want me to carry on.
Chairman: No. I think that you have just most
recently described precisely what the functions of this committee
are.
Q611 Baroness O'Cathain: Do you think
it is inertia or apathy on behalf of the general public that has
allowed this surveillance creep as we call it now? To follow what
you have just said, do you think the public really want to pause
and reflect? Is there any demand out there for anybody to put
a stop to all of this, to the endless march of technology?
Professor Loader: It is a difficult question
to answer. I spend a lot of my time when I am doing my research
talking to people about these very questions. My best guess is
that this is a minority view, if one that is sometimes very angrily
and loudly propagated, that there is among a section of the population
a certain amount of enthusiasm for some of these measures. They
recognise that the crime or terror, or whatever it is, is a problem
and it seems only reasonable that we would do anything that we
possibly can about this. I am not sure that that level of enthusiasm
is widespread. The more general reaction to these things is either
not to think about them very much at all on a day-to-day basis
unless prompted to do so or to be indifferent or to have a series
of quiet grumbles that one does not really know how to translate
into anything that you might call activity. The question about
the chilling effect was posed in your written submission to me.
I thought about this. My initial answer to the question "is
there any evidence of a chilling effect" is that I do not
know whether there is. Then I was led to think about what would
count as good evidence of a chilling effect having taken place.
One aspect of that might simply be that level of public indifference
and apathy. It is a cause of some puzzlement to me why we have
gone, for the sake of an example, in a very short space of time,
say 20 years, from having very few surveillance cameras in public
spaces to having many more than any other country on the planet
without, it seems to me, any kind of serious public discussion
about whether either this is a good idea on ethical or political
grounds, or even whether this is a good use of what remain scarce
public resources to be devoted to questions of crime prevention
and crime control. That remains something of a puzzle to me. It
may be that if there is a chilling effect, how we measure it is
down to a certain degree of fatalism. These things are just going
to happen; I might not particularly like it or dislike it or think
much about it but what can I do? If I do not want a CCTV camera
in my town centre or here or there, what exactly do I do? Do I
write to my MP, do I write to this committee, do I join Liberty
or do I just do nothing? I rather wonder whether if you wanted
a single encapsulation of where we are, it might be something
rather more akin to that. Another thing that puzzles me in this
context is why ID cards seem to be building up a head of steam
of overt and organised opposition and disquiet. There may be all
sort of cultural reasons to do with the English and ID cards that
are at play here. It may be that they have just become something
tangible. In the context where there is a level of unease and
disquiet about the way things are going and you do not know how
to get a handle on that, ID cards may present themselves to people
as being something that they can grasp and dislike and draw a
line in the sand. I cannot back that up. That is hypothesis.
Q612 Baroness O'Cathain: Getting
back to surveillance, the justification for surveillance is usually
stated in terms of national or personal security. What role do
you think legally enforceable human rights can or should play
in setting limits on surveillance activities, or indeed what does
the general public know about legally enforceable human rights?
Professor Loader: The answer to that
question I rather suspect is: not very much. That may have some
bearing on how we think about the best possible answer to the
first of your questions. You could take the view that human rights
are legally enforceable protections and we when want to think
about the best ways in which we put in place legally enforceable
protections, we just think about lawyers and what they do. It
seems to me that we also have to give some thought to the question
of the ways in which any kinds of right to protection has some
wider purchase on public opinion and sentiment. I am not sure
that human rights protections in this field, or indeed even the
question of how one goes about establishing a more robust regulatory
regime for surveillance practices in general, CCTV systems, press
themselves very heavily on public or political consciousness right
now. I have no easy answer to what you might do about that.
Q613 Viscount Bledisloe: Before I
put my question, can I make one point plain? Amongst the various
suggestions you made was that people who did not like it should
write to the committee. That is a very, very bad idea! Is not
a main factor in what you were talking about the fact that people
just do not know what is done? I suppose I reckon I know a bit
more than most people but until I sat on this committee, I had
no idea that if I pay for my Oyster card with my credit card,
all my journeys are then logged against me. There are thousands
of other things. I did not know there were CCTV cameras that could
bug what you said. Ought not there to be some way in which there
was more public knowledge of what actually is happening?
Professor Loader: I am not sure what
one would do with the information. I too only discovered a couple
of weeks ago that if you use an Oyster card your journeys through
London could be tracked by London Underground.
Q614 Viscount Bledisloe: For example,
I pay for my Oyster card with cash.
Professor Loader: There are other examples.
As we know, if you use a mobile phone, you are leaving a permanent
trace of your movements that the authorities could, if they so
wish, retrospectively recover. The same happens when you use a
cash point machine and with supermarket loyalty cards; supermarkets
can use that information to generate all kinds of information
about your consumption patterns and your lifestyles, which they
could then use as they see fit. Many of those things seem so embedded
in contemporary lifestyles, what can you do? Your only option
in the mobile phone instance is not to have a mobile phone. Most
people think not having a mobile of phone is to reduce the quality
of your life, not enhance it. That may not be true. The point
I am making is that if one feels a level of disquiet about many
of the ways in which you are surveilled as you go about your routine
business as a law-abiding citizen, there is not much you can do
about it on a practical level.
Q615 Viscount Bledisloe: For example,
supposing everyone knew that if they use their credit card, it
is all logged and shared around and everything: would there not
be a large market for a credit card that undertook not to do that?
Professor Loader: I do not know. The
thought that goes through my mind is: if that is true, why has
no-one taken advantage of this market opportunity just yet?
Q616 Lord Rowlands: You said in your
earlier remarks that there had been a stream of criminal legislation
and that we need to pause and ask what the effect is. There is
a growing method of doing that apparently, which we call post-legislative
scrutiny. Of all these Bills that you refer to, the stream of
Bills that have promoted surveillance, which ones do you think
we should target in post-legislative scrutiny?
Professor Loader: That is difficult,
just sitting here, without looking at them in detail.
Q617 Lord Rowlands: There has been
a whole stream of them.
Professor Loader: I think the problem
is that if you took any one of those Bills one by one, you might,
as the Government has been minded to do, come up with several
plausible reasons why this particular Bill was required to deal
with this particular problem. When you look back over 10 years
of legislative activity, you suddenly discover—and I discovered
this to my shock and surprise—that there have been more
pieces of criminal justice legislation in the last 10 years than
there were passed in the previous 100. I take a lot of persuading
that we live in such dangerous times that we require such a step
change in the amount of legislative activity that is devoted to
questions of making us individually and collectively safer. The
problem, as I see it, becomes apparent when you look at the pattern
in aggregate terms; it does not necessarily mean you go through
the 66 and say that we can filter out these 10 and we really did
not need that one or that one. The problem we are confronted with
is why is it? To me it is a genuine puzzle and it will be a puzzle
for future historians I think: why is it that this Government
has become just so busy in the field of crime, criminal justice
and punishment. There are all kinds of reasons that we could talk
about, but nonetheless it seems to me irrefutable that it has
become extremely busy. It is not obvious to me that our society
is either safer or a better place to live, considered in the round,
as a consequence of all that activity.
Q618 Lord Rowlands: Presumably, and
governments do not do it willy-nilly, in many ways this would
be being reactive or responding to situations or responding to
sentiments that parliamentarians and politicians are picking up
from the public: yes, we want anti-social behaviour orders because
there is a bunch of young yobs who have been causing mayhem in
the square or in the street. This is how it arises.
Professor Loader: That is undoubtedly
what they would say. There is undoubtedly something in that in
that it is impossible to work out whether your method of detection
is your postbag as an MP or your reading of the papers or just
what you hear in the ether about a level of public concern and
alarm as to certain kinds of problems and places that properly
require democratic government to respond. Whether that unproblematically
translates into 66 pieces of criminal justice legislation and
everything that has gone in train with that seems to me to be
a rather more open question, shall we say.
Q619 Lord Rowlands: You cannot identify
say three or four Bills or Acts that in retrospect we should re-visit
in post-legislative scrutiny?
Professor Loader: If you gave me a bit
of time, I would be able to do that. I do not think I can do that
just sitting here now with any confidence.
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