Examination of Witnesses (Questions 620-638)
Professor Ian Loader
14 MAY 2008
Q620 Lord Rowlands: Could you send
us written evidence to that effect?
Professor Loader: I could look at that.
Q621 Lord Woolf: I have just two
points, and I want to see whether you agree with them. You point
out that with this legislation, treated individually, you can
always see some form of justification for it, one hopes, but what
has been lost sight of is that the sheer volume of the legislation
has very damaging effects on the efficiency of those forces which
should be achieving what the legislation is designed to achieve
if the object is to reduce crime. For example, the judges have
been ignored; they have been crying out for years, saying "Please,
leave off this legislation, because we just cannot deal with it.
The educational efforts that are required are so very considerable."
That falls on deaf ears because of the political will to do something
which appears to the public to be beneficial but is not beneficial
for the reasons I have just indicated. You cannot just look at
the legislation. You have to look and see the consequence of magistrates
having yet another thing to learn, and the consequences of judges
having to spend more and more time on it. I wanted to put another
aspect of that before you respond. Are we not getting to a situation
where perhaps the obvious disadvantage of intrusion on the individual's
right to privacy is self-correcting, because so much information
has now been collected that, even with the vast sophistication
of dealing with information, really, we cannot keep up with it,
in the sense that the expense of finding out what the information
could provide is so great that it can only be used for limited
purposes?
Professor Loader: Let me take each of
those things in turn. I think your analysis of what has happened
is broadly right. One of the explanations for the step change
in Government activity I think is because—and this was rather
more pronounced under our previous leader than our current one,
at least at the level of public rhetoric—they saw themselves
as the consumer's champion, taking on the forces of remote bureaucrats
who ran, in this case, the criminal justice system, and that included
judges, that included police officers. They therefore saw as their
job to make sure that that system bent, as far as it could be
made to bend, to the Government's interpretation of the public
will, and the public will was that they wanted more things done
about crime and whatever. That has also had consequences for the
capacity of that system to cope with that sheer level of initiative
and new pieces of legislation, and so on and so forth, which may
mean that on the ground things have not played out in the way
the Government might have intended. CCTV might be a good example
of that. It is sometimes said that inefficiency is a great check
on the power of the state to intrude in the life of the citizen,
and there is something in that. CCTV is a good example because,
I suspect, and indeed, there is a certain amount of evidence to
establish this, that what mainly happens in an awful lot of cases
is nothing, that only some of the systems are routinely monitored
on the basis that some just record, some are dummy cameras, and
that anybody who wanted to seriously use this information would
just experience a massive sense of overload and an incapacity
to register and do what they wanted with it. That is not to say
there are not aspects of this development that are not problematic.
Nonetheless—I do not know what the best phrase for this
is—the barking may be louder than the effect of the biting
on the ground. I cannot think of a better metaphor off the top
of my head.
Q622 Lord Smith of Clifton: Professor
Loader, of course, before the spate of legislation that you have
talked about that we have had since 1997, prior to that, in a
sort of microcosmic way, we had 30 years of experience in Northern
Ireland, where there was a spate of specific legislation for Northern
Ireland which by and large was neither necessary nor used in the
fight against terrorism and civil disturbance. Do you agree with
that? In other words, we had had a laboratory experiment in Northern
Ireland before we applied it to Great Britain. Secondly, if you
do do a quick look for us about the effects particular Bills have
had and what, in post-legislative terms, might be recommended
ditching, or at least having a look at, I wonder if you could
possibly include the experience of Northern Ireland over the 30
years before 1997, because I suspect you would find much the same
sort of story.
Professor Loader: I can certainly have
a look. I am no expert on the experience in Northern Ireland at
all, so I venture into this territory rather hesitantly. I know
things I could look at to think about that question.
Q623 Lord Lyell of Markyate: We are
trying to find what is acceptable in surveillance and what is
beyond the pale. Can you give us, quite briefly, three examples
of things which you think are broadly acceptable and three examples
of things which you think are definitely beyond the pale?
Professor Loader: I think what becomes
acceptable in broad terms—and this may or may not be an
adequate answer to the question you pose—is targeting resources
and technologies and legislation where you can identify particular
kinds of problems or neighbourhoods or locations where they can
be effectively used. In other words, I think the argument I am
making is an argument for what you might call judiciousness or
prudence, in other words, for thinking rather carefully and targeting
resources in appropriate weight. What I find most objectionable
about the way we as a society have embraced CCTV is the kind of
rather scattergun approach that we have used to this, which a
bit of me finds deeply troubling at the level of waste of money,
apart from anything else, because it is just assumed that this
is some kind of all-purpose solution that we can use. I think
what we need to do, and what I would approve of, is careful and
appropriate targeting, with appropriate forms of regulation and
accountability and transparency that can give people greater levels
of confidence that those systems are being used in the way that
they are. What do I think is beyond the pale? I suppose the inverse
of what I have just said is beyond the pale, the sheer unthinking
speed with which we now put into effect surveillance and other
kinds of anti-crime technologies, and the disregard that we give
to the implications that they have both in how they work on the
ground and for questions of liberty.
Q624 Lord Lyell of Markyate: That
is a bit of a surprising answer to me, because it seems to be
based entirely on questions of efficiency and not on principle.
For example, would you not agree that, albeit there may be far
too many CCTV cameras—I do not personally think there are
but there may or may not be too many of them—they are not
really doing anybody any harm? They may be wasting some money.
That is quite possible but that is a different question. On the
other hand, if people were using parabolic microphones to track
you in your conversation up from the High towards All Souls and
were then using that to hold it against you to show that you were
an anarchist—which I am sure you are not—that might
be regarded as beyond the pale. That is what I am referring to
as matters of principle.
Professor Loader: That is a misreading
of my position. My criteria for judging these things are not efficiency
and effectiveness so I am sorry if I conveyed that impression.
Clearly, that would be an example. I am currently involved in
some research. Investigating the ways in which CCTV companies
go about selling their wares is our research question, and we
are in the early stages, but it seems to me that one of the things
about the CCTV industry as a market currently is, one, in this
country at least, the market is fairly saturated, so I have now
lost track of the number of CCTV providers who say that Eastern
Europe and the rest of the world is where they are headed because
there is not much more you can do here, but the one thing they
can do here is, when you have systems that require updating, as
20-year-old systems frequently do, they are now able to say to
people, "We now have much more technologically sophisticated
kit that we can sell you, and it can do things that your old system
cannot do," and it can do things that are increasingly sophisticated,
like logging on to individuals and following their movements,
recording their movements, typing in particular kinds of profiles
of individuals, and all that kind of stuff which I am sure you
have come across. That seems to me to raise rather more serious
intrusion on people's privacy and liberty questions than the standard
CCTV camera that simply records the mass of movements of people
walking down the street and does nothing else. The sheer pace
of technological change in terms of what the equipment can do
raises some profound questions about our capacity, because it
enables people to think about forms of crime control that were
not previously open to them, and raises serious questions about
our capacity to think about the ethics of them and their human
rights and liberty implications.
Q625 Lord Peston: If I can start
with a comment, as far as we know, politicians are now held in
lower esteem than they ever have been in the history of our country,
yet at the same time, given any problem, the public seems to demand
that these very same politicians do something about it. That seems
to me to be really paradoxical, and I think it lies behind a great
deal of what you yourself are saying, namely, that "something
must be done" is what is always being said. Every day. I
think there was one on knives today. Because several people have
tragically been killed with knives, the Governments suddenly announces
I cannot remember what intensification, or maybe it is the Met
has suddenly announced some intensification of knife search, but
it is simply a problem and we have to do something, even though
we lack all the evidence that doing anything does anything, if
you know what I mean. The best example we have had in the last
week is the reclassification of cannabis. Any economist will tell
you what that does is raise the rate of return to all the illegal
dealers. You wonder whether no-one has ever seen a film to do
with the Twenties in America. Nonetheless, they suddenly decide—in
this case it is a government I support—that they must do
something, with the italics on "do"—even though
any analysis tells you that this will produce the exact opposite
effect. Do you have any explanation for this? I have always cynically
taken the view on the legislation that full employment for lawyers
is the main target for this Government. That is a cynical view.
Do you not agree it is paradoxical that governments cannot say
in many cases "It is terrible but there is actually nothing
we know of or that we can think of to do"? Governments are
not allowed to say that.
Professor Loader: I agree that is a paradox.
I think the other thing you discover if you, as I do, spend your
time tracking and thinking about political responses to crime
and their relationships to the crime problem, is that it is strong
and confident governments who feel most able to have an intelligent
conversation with the public about what can and cannot be done
to address and respond to crime risks, and politically weak and
faltering governments find it extremely tempting to use crime
as a means of shoring up their legitimacy. It always strikes me—and
I risk becoming an amateur political journalist at this point,
but there we are—that one of the things about the Blair
government is that it was strong but unconfident; in other words,
it was concerned that its majority could be blown away at a stroke,
and therefore the attention on crime was, at least in part, an
attempt to shore up its constituency of voters who had supported
it. If you look back, in retrospect, over the 18 years of Conservative
rule from 1979 to 1997, there was lots of huffing and puffing
and making tough rhetorical noises but the record of that government
was extremely mixed. The times at which that government most commonly
resorted to what you might describe as tough law and order measures
were at the beginning, when Margaret Thatcher was the most unpopular
Prime Minister in recorded polling, and at the end. At the time
in which Margaret Thatcher was at the peak of her political powers,
we put in place under Douglas Hurd what became the Criminal Justice
Act 1991, we reduced the prison population, the government engaged
in a reasoned, rational and coherent dialogue about how our society
responds to crime. It seems to me that the political conditions
for moving away from that kind of consumerist politics that says
"You, the electorate, are very worried; we, the government,
our job is just to respond rather uncritically to what we think
you are telling us." A government that says "There are
these kinds of resource constraints, we have these kinds of trade-offs,
and there are these kinds of human rights considerations to enter
into the equation," a government that is able to have that
informed dialogue with the electorate about how we go about thinking
about and responding to crime or terrorism and anti-social behaviour
requires a certain amount of political courage in a world where
governments think that the loyalty that their voters have to them
is rather looser and more contingent than it was, say, 30 or 40
years ago.
Q626 Lord Peston: Can I make one
other observation on that so that we do not just concentrate on
lawyers? It is still the case that the majority of medical conditions
are such that a doctor can make no useful intervention when the
patient presents, but no doctor is capable of saying "There
is nothing I can do to help you," so we get vast over-prescribing
of drugs simply because the doctor feels he cannot let the person
walked out of the place with the message "There is nothing
I can do for you". That is the exact analogy again professionally
for governments and lawyers. The answer "I can do nothing
to help you" is not an acceptable answer.
Professor Loader: Can I just respond
to what Lord Lyell said a minute ago, at least in these terms,
which is to say that one of the consequences of the ways in which
we have come to think about these things is we have got into an
unfortunate position of treating liberty and security as if they
exist in an almost entirely zero-sum relationship. That seems
to me to be a deep mistake. It is a deep mistake for this reason.
I have just written a book which is an attempt to answer the question
"What does it mean for individuals to be secure?" Individuals
are partly able to feel secure because they live in an objectively
secure situation. In other words, they feel the levels of risk
that they face are relatively low or manageable, but they also
have to have some kind of secure feeling, in other words, part
of security is a subjective sense of well-being, freedom from
anxiety, and that does not only flow from your levels of subjective
risk. It flows in part from your capacity to feel that you have
some kind of confident, effortless sense of belonging to the society
of which you are a part. How the government behaves in the broad
span of its activities has a deep bearing on that aspect of your
security. If you think about security like that, human rights
protections have a significant importance not only in checking
what governments can do and the kinds of powers they can afford
themselves, but also in registering certain kinds of counter-majoritarian
protections for those who are frequently the target of at least
more specific forms of surveillance. If you start to think this
through, it becomes clear, put at its most stark, that human rights
are importantly a pre-condition for achieving security, or at
the very least that those two terms do not exist in a relationship
of deep tension in the ways that it increasingly is now presented
to us.
Q627 Baroness O'Cathain: Can I come
back to Lord Lyell's question and your answer to it, because he
did ask for things that were acceptable and were not acceptable.
Your first answer was targeting technology et cetera in "appropriate
weight". Who is going to dictate what is an appropriate weight?
How do you come to the conclusion what the appropriate weight
is? Is there any way of measuring that appropriate weight?
Professor Loader: I am pausing as I find
it hard to know, off the top of my head, what that appropriate
weight would be.
Q628 Baroness O'Cathain: You said
it.
Professor Loader: Yes, I know I said
it.
Q629 Baroness O'Cathain: It is a
difficult one. It has had me musing ever since you uttered those
words.
Professor Loader: In a sense, you can
pose the question at both an individual and, as it were, a policy
and resource allocation level, because at an individual level
you want to know. I often wonder about the Metropolitan Police
operation at Forest Gate in this context. Ian Blair probably did
the only thing he could do in those situations. In other words,
he got intelligence that there was a terrorist cell in Forest
Gate, and it takes a very brave Police Commissioner to say "I
think that is dodgy intelligence. I'm going to do nothing."
So he did what I think anybody in his position would do, and he
acted on the intelligence he had, only subsequently to discover
that that intelligence was not very good. The problem for someone
like Ian Blair is that you cannot keep doing that. You cannot
keep throwing up false positives without having some very serious
consequences for police relationships with, in this case, the
Muslim community, which is a problem not only at the level of
the principle of policing by consent but at the level of effectiveness,
because effective counter-terrorism policing, as Ian Blair well
knows, requires people in the Muslim community to supply them
with information. The more Forest Gates you have, the more difficult
that process becomes. This bears on the appropriate weight question,
because it does seem to me—and there was a question there
about intelligence-led policing—that you need to think about
the kinds of intelligence coming your way and have procedures
in place for distinguishing what you call intelligence from information,
gossip, hearsay and all the other things that people might say
to a police officer about Bloggs who lives at number 13. That
question also seems to me to emerge at a resource distribution
level, because it does seem to me that you want to find some way
of trying to align resources with some sense of objective risk.
Q630 Baroness O'Cathain: Do you think
that is ever going to be possible, because you are trying to balance
practical resources with emotional responses?
Professor Loader: I think it becomes
more possible if you can summon up the confidence to try and engage
in forms of rational dialogue about the problems that we face
rather than seeing it as your task to jump to the tune being played
by those emotional voices.
Q631 Lord Morris of Aberavon: I will
ask my question in three parts because I think they are interdependent
and follow on each other and are consequential. First—and
this is slightly up in the air in view of recent judicial developments—do
you think that a right of privacy enjoys a sufficiently solid
foundation in jurisprudence in this country? Secondly, how important
is a right of privacy as a safeguard against the excesses of surveillance?
That begs a question in itself, and you have given an illustration
of mobile phones, and we know that evidence can be produced in
court of actually the time the call is made and the place, down
to this room. My advice to a terrorist would be—which they
do, without my advice—do not use the same mobile phone but
have 200 SIM cards. That is one of the problems about the 42 days
we are talking about at the moment. Thirdly, how can the current
arrangements, DPA, the Regulation of Investigatory Powers Act,
information and interception and surveillance commissions, those
statutory arrangements, be strengthened or supplemented?
Professor Loader: The first question
you asked is the one I thought I could not answer. Many years
ago I did a law degree but I no longer think of myself as being
a lawyer. If you want to seek some advice on the place that privacy
has in English jurisprudence, I am not your man, I am afraid,
which is not to say I do not think there are some interesting
questions about privacy here and what privacy now means. It seems
to me that privacy must and should remain an important part of
our conversation when we think about surveillance, as both a value
which we wish to cling on to and a something which you might want
to give legislative effect to, because the capacity to control
information about your life and your doings seems to me an important
part of what it means to have some kind of capsule around you
as an individual and a sphere of autonomy within which to operate
that the state cannot encroach upon. Of course, that just becomes
much more complicated in a world of mobile phones and the Internet
and global networking and so on and so forth. One wonders in this
context—and I just pose this as a hypothesis and I am not
the first person to do so—whether privacy means the same
thing any more to people who are in their twenties than it does
to someone like me in their forties or other Members in this room.
In a world of social networking, where people seem very freely
able and willing to give up their privacy and advertise all kinds
of their doings to complete strangers, legally or socially, what
does privacy any longer mean? There seems to me in that case an
argument for hanging on to it. Maybe in that world a legal right
to privacy becomes more important, and it becomes significant
that you place firewalls between what people have freely entered
into the public domain in a certain context because they are wanting
to communicate with their friends, and what other people can do
with that information in other spheres of their life. So if you
suddenly decide to put some pictures of yourself up on a Friday
night, drunk, on the streets of Oxford, 15 years later can an
employer use that picture not to employ you, or can a police force
use it to infer that you are a person with a disreputable history?
I think that is all rather troubling. What one does to try and
erect those firewalls which, as it were, give some credence to
the context in which that information was first generated, I think
that is a difficult challenge to which I have no easy answers
but I think it is a challenge which we all need, rather pressingly,
to think about. Your third question—one bit of this that
has always irritated me, so I might as well get it off my chest
since I am here, is this. One of the unpleasant and damaging social
consequences of the advent of a surveillance society is the use
of surveillance as entertainment, not least because one consequence
of that has been to some extent to spread the idea that we live
in a society which is falling apart, which is broken, which is
violent, which is dangerous. So if I were to forbid one thing,
I would forbid police forces from being able to sell CCTV footage
to television companies. I think no social good can come of that
practice.
Baroness O'Cathain: Would you also ban programmes
like "Big Brother"? There is one in the jungle as well,
is there not?
Q632 Chairman: "I'm a celebrity,
get me out of here." I hasten to say I never watch it.
Professor Loader: Possibly for aesthetic
reasons!
Q633 Baroness O'Cathain: This is
a serious point because you do raise this issue, and the fact
is, those very programmes give people the right or seem to give
people the right to think that they should know every darn detail
of every single individual they want to know about.
Professor Loader: Absolutely, and I think
that is an important part of this conversation because, if that
becomes a much more widespread public sentiment, it then becomes
very difficult to argue that anybody, least of all someone as
deeply unpopular as a suspected offender, should be able to keep
certain aspects of their doings secret from anyone else or the
authorities, which is partly why I raised the question about the
changing uses and meanings of privacy in our society. I think
that is a very central part of the issue that we are confronted
with.
Q634 Lord Morris of Aberavon: Can
I be precise as to what I was asking earlier? Are the existing
pieces of statutory machinery and the organs set up sufficient
to deal with fast-moving technologies, not only fast-moving but
maybe much bigger investment in existing measuring technologies?
Let me give you an example. You can go to quite a few shops in
London and buy highly sophisticated listening devices, highly
sophisticated sights which can pick you up a long way away, and
there are a whole host of bugging devices which are easily available
so the public. Secondly, perhaps more mundane, it was Lord MacLaurin,
the former Chairman of Tesco, who said in the memorable phrase
that when he engaged experts to measure the use of club cards
in his shops, he knew more about the business in three months
from their work than in a lifetime of working in that particular
industry. Those are the kinds of development happening. Are the
Acts of Parliament sufficient to deal with this, or should they?
Professor Loader: My hesitation is only
because surveillance is not sufficiently my area that I confidently
know what those regimes are currently. My hunch is, in response
to the examples you give, no, but that requires us to think about
exactly how they are lacking. Maybe certain forms of those technologies
should require a licence. One needs certain kinds of constraints
on consumption. Maybe we need more robust constraints on what
individuals can do. What does one do with a supermarket's customer
loyalty scheme? What would be the grounds on which one might,
for example, want to make them illegal?
Lord Lyell of Markyate: What one does is to
invite a professor from All Souls to give you an answer!
Q635 Lord Rowlands: People volunteer.
Presumably, when you take loyalty card, you are volunteering.
Would you ban volunteering?
Professor Loader: Precisely. It is a
consensual exchange between adults, is it not? That is why I posed
the question: what grounds would you mobilise to say that shops
should not be able to operate such schemes when their customers
want to effectively hand over information about their consumption
practices in return for slightly cheaper goods? That is what is
going on.
Baroness O'Cathain: Can I just intervene here,
as an ex-board director of Tesco, who was actually on the board
when we decided to go down the club card route? It was done solely,
in the beginning, to make sure that everything was going to be
in stock. It was done on bar codes. Then they really realised
it would be a good marketing tool if somebody buys an enormous
amount of a certain wine occasionally to give them the opportunity
to buy it at a discount. I am sure Lord MacLaurin, to be fair
to him, never really meant that he knew about his customers. He
probably knows the toothpaste they buy but he does not know what
they do or what they work at or anything like that. We are getting
confused now, far too confused. A customer is not a fool. They
know exactly the reasons for loyalty cards, and I bet practically
everybody around here has a loyalty card.
Q636 Lord Morris of Aberavon: My
Lord Chairman, I am not arguing the merits of any of these, either
for or against. All I was trying to elucidate, in which I felt
earlier, was whether the present statutory bodies are sufficient
to deal with developments, whether technological or whatever.
That is the sole question.
Professor Loader: My honest answer would
have to be that I do not know. It is not sufficiently my field,
nor something I have studied in detail, to feel I can come to
a Committee like this and give you an answer, so I ought not give
you an answer.
Q637 Lord Peston: Preliminary to
that, of course, Karl Popper pointed out to us many years ago
that many apparently good things can have appalling unexpected
consequences, and that includes loyalty cards and almost anything
else we have ever invented. On intelligence-led policing, which
you have led us into already, I take it what you mean is information-led
policing as opposed to "use of your intelligence as a person"
kind of policing. One of the things that troubles me is the approach
to policing, which often, to me, as an outsider, seems plainly
idiotic. Let us get to intelligence, by which you mean information-sourcing.
You said, it seems to me overwhelmingly correctly, that you need
public co-operation and public support for this kind of intelligence
policing. If you go through the logic of it, what is troubling,
and I think you are guiding us towards it, is that you sit there
and you say, "Well, who are the likely terrorists?"
That is trying to analyse it, and you think nowadays it is members
of the Muslim community in our society. This is post the IRA.
Therefore that is the community we have got to get information
about, which is also the community we have got to get information
from. Is there not really a problem there precisely in that way,
that you want people to co-operate but, in a sense, they are "shopping"
fellow members of their own community? Is that not the nature
of the problem? That is the problem, presumably, that Ian Blair
ran into.
Professor Loader: That is exactly the
nature of the problem and, of course, it is a problem with a history.
Police relations with the Muslim community did not suddenly start
on 12 September 2001. There is a pre-history that continues to
shape and structure the ways in which minority groups relate to
the police. Part of the problem the Metropolitan Police has is
getting over the "Why are you only interested in this community
and its problems and its issues now, when we have been defined
as a threat, when prior to 2001 we can mount a reasonable case
to say that our interests were not very high up on the list of
priorities?" There is a kind of "Johnny-come-lately"
problem that the Metropolitan Police has to get over. The trick
is to try and find ways—and Ian Blair will know this—of
trying to establish greater forms of confidence in that community,
not only in how the police treat them but in ensuring that those
members of the community feel secure, i.e. feel secure in the
sense of enjoying an effortless, confident sense of belonging
to the society in which they live. Of course, every single police
action bears on that question: every time you are stopped and
questioned, how you are stopped and questioned, when you are stopped
and questioned. When I was sat in Parliament Square at 11.20 and
a police officer came and spoke to me under section 44, I did
not feel that my secure and confident membership of this society
was at stake in that encounter. I might not have wanted the encounter
to happen but I did not feel it was at stake. If I were a 15-year-old
Muslim having that encounter, I think I would be more minded to
feel that my confident, effortless membership of this society
was at stake in that encounter and I had better behave in certain
kinds of ways. The trick is to try and find—and this is
not only a police problem—all kinds of strategies and policies
that make the Muslim community as a whole feel that they belong
here, and not that they are just a threat, who only come to our
interest and concern because we want them to shop the members
of their community we think may be extremists.
Q638 Lord Peston: In a sense, it
really is a matter of making sure—which is not really for
the police, it seems to me—that they feel like members of
our community. I have certainly been stopped and searched once
when I was much younger, going to a football match, and I thought
it was marvellous that I had been singled out as the most likely
dangerous person. I felt very much a part of society, one of the
boys! I might add that I was stopped by a lady policeman, which
made it even better. I think with some parts of our community
the problem surely starts earlier than the police. It is to do
with the fact that they do not feel part of our community anyway,
which I take it is what you are saying.
Professor Loader: Yes, absolutely. Like
any other crime problem, there cannot only be a policing solution
to it.
Chairman: Professor Loader, you have been extremely
generous with your time. Thank you. I think we have guessed the
title of your new book—it is going to be called "The
era of Buggins' turn"! Thank you very much indeed for joining
the Committee, and for the evidence you have given.
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