Surveillance: Citizens and the State - Constitution Committee Contents

  Q740  Lord Rowlands: The German commissioners, are they privacy commissioners? We went to Canada and heard that they divide privacy from freedom of information whereas our Information Commissioner does both. The argument we had in Canada was there was a potential conflict of interest between the two. In the German model are there privacy commissioners or freedom of information commissioners?

  Professor Fedtke: Here I would say that the English system is very much advanced compared to the German when it comes to freedom of information. In that area the Germans are struggling to catch up with the United Kingdom. Access to information is something which this country has championed and where the Germans have done very badly. I think the two in Germany are seen as separate entities although there is a big mix. If you look at the Data Protection Act in Germany as well as in this country, there are rights to access data so obviously the two are very closely intertwined.

  Q741  Lord Rowlands: You would prefer a model where they are separate.

  Professor Fedtke: Both are very closely related. I would not really have a strong opinion either way as there are advantages and disadvantages in both. The development has been quite different and I could not even say why. It is remarkable that this country has developed access to information very well and Germany has neglected it. Germany has gone quite far ahead in terms of data protection whereas this country might have some catching up to do there.

  Q742  Baroness O'Cathain: We move now from the constitutional conventions or principles to constitutional relationships. Professor Oliver, what do you feel about the relationships between citizens and the state and how they have been affected by the increased use of surveillance? How are they likely to be affected with the inextricable march of better technologies to do just that? Do you believe that they are a threat to the constitutionally established understandings of citizenship in the UK?

  Professor Oliver: A difficulty is we do not have a very articulated understanding of citizenship. For me a major problem is the risk that individuals will feel that they cannot trust the state with the information that it has about them and that might make them feel insecure and unwilling to co-operate with the state, unwilling to provide information, for example about their tax and so on, because they are concerned it might be either lost or get into hands they do not want the information to get into. For me the main thing is this question of security, trust and co-operation. Our system depends very largely on law abiding citizens being willing to co-operate with the state and do their tax returns and generally do what is required of them. I find it difficult to be more precise than that about the effect of this information.

  Q743  Baroness O'Cathain: I suppose your comments are a direct result of all the CDs and data that has gone missing. Would there be a reason to have regulation to make sure that any data should be encrypted straight away once it is used just in case it falls into the wrong hands?

  Professor Oliver: It sounds a good idea. I do not really understand what can be done to data to protect it but I cannot see an objection to it myself.

  Q744  Baroness O'Cathain: It does seem strange that more data can go all around the country and fall into all sorts of wrong hands without being encrypted. The last thing we want is more and more laws but do you think it is something to consider?

  Professor Oliver: It might well be and I am sorry I cannot say anything very strong about it. One of the problems is we think about these matters on the assumption that our public servants are honest and incorrupt, which fortunately they are, but of course as it becomes known that public servants might have access to information that would be valuable to criminals they are likely to be targeted. We have to get our heads around a scenario that you might not be able to trust, as we do, public servants. I am not quite sure how to deal with it.

  Q745  Lord Peston: We have surveillance and it arises essentially from the question of security, both individual security and national security. I do not think any of us doubt that is something we have to take very seriously. The real point, it seems to me, is the limits point which has been raised by both of you. You could put it another way around: if you give any authority any power, and it is not to do with corruption, they will test that power to the limit. Certainly we have had some rather horrific evidence. The most amusing of all was a professor who came to us and sat in the Square and his stuff was searched under the anti-terrorism law. He was just sitting there because he was early before coming to give evidence. I find it hard to believe that parliament enacted that legislation so professors, of all people, should be searched. It is a not a question of professors but can we draw the line somewhere, and in particular whether the human rights thing protects us in practice in the relevant way?

  Professor Fedtke: In the light of the German experience, human rights have provided a very good shield, a very good protection. As you rightly say, the difficulty is to strike a balance between the national interest and security and safety for the people and the interest of the individual to be protected from excessive surveillance or an excessive use of data. I think that the Human Rights Act and the European Convention on Human Rights have had a positive impact in this country as well. Legislation has been put into effect in order to regulate surveillance and data protection under the influence of the European Convention on Human Rights or other measures: international laws such as the Data Protection Directive of the European Union. I do think that human rights provide a strong bulwark but then you have to zoom in and look at the details. I am afraid a general right to privacy is difficult to put into practice and it needs teeth. There I would strongly endorse specifically legislation which deals with particular areas, particular activities of public authorities, and balances very carefully what these public authorities need in terms of information and what they can pass on for the exercise of their particular duties and the right of the individual to be protected from excessive surveillance and data mining.

  Q746  Lord Peston: In terms of viewing it in terms of legislation, and I well understand the spirit in which you are making those remarks, there is often difficulty writing into legislation the way you want it used. To take an obvious philosophical point which refers to the balancing question, you could say we are passing this legislation but we want it used in the last resort and only when you have to. Compare that with we are passing it and use it in the first resort. Many of us in this area take the last resort view. The great row going on about the 42 days now is the danger that it will become the normal thing rather than the thing only in extremis. Are you optimistic that if we go down the line of balancing that parliaments of different sorts can persuade the people who are doing the actions that many of these powers, because security is so important, should only be used as a last resort? To give you another example which absolutely horrifies me, I gather the City of London uses what powers it has to clock every car going through the City of London. The idea that the City of London should have the power to clock every car going in and out, which I gather they do on security grounds, to go back to my John Stuart Mill point as an old-fashioned liberal, I just find it not a world I would like to live in. That they should be able to use those powers in the last resort is another matter. What is your response to that? How can we as parliamentarians get the last resort idea into our legislation?

  Professor Oliver: That is difficult. The fact of the matter is it is not just the City of London because there is the congestion charge. Interestingly I do not think when the congestion charge was being introduced anybody was worrying about the fact that it would mean your car number was taken. To home in on the point, it is very difficult for parliament to spell things out. Of course, holding bodies accountable, getting them to report on how they have used their powers and then investigating it, is one matter. Another possibility, for example for the police force, might be for them to articulate their policy. Re the professor who was searched outside parliament: maybe there is a police policy that anyone with a rucksack or a briefcase within X yards of parliament should have that brief case searched. I can understand that; but it would help if some of those rules were published so that people knew that you should not sit in Parliament Square with a briefcase if you do not want it searched. Also people can then say "that is excessive" or "you should do more". The policy behind the exercise of some of these powers, in some circumstances, could be more open.

  Professor Fedtke: It is a question perhaps of definition. If you want to protect national security, how do you define that? It is very difficult for parliament in any system to come to grips with that problem. I find that the use of very general terms, and national security could be one example, is problematic. How do you solve that? You could introduce in legislation a list of criminal offences which endanger national security so you are giving flesh to the term as a legislator. You are telling the public authorities national interest is important, that is a value and will justify quite severe measures but we define that term as follows. Then you can have, in some systems, quite elaborate catalogues of criminal offences which give flesh to what is intended. That is what you are supposed to do. On the plus side, the principle of proportionality has entered into legislation in this country and that requires public authorities, not in each and every case but in most cases, to check whether there are milder means. Milder means that is an indicator, that is the flashlight, it is the last resort, look around to what you can do before you actually use this tool. That is a very valuable method of approaching that particular problem. I keep on repeating myself on this one point, that the task for parliament becomes easier if you regulate specific areas: local authorities with their powers and their surveillance methods which need certain requirements, conditions need to be met; then health authorities; then an authority dealing with identity cards; the police and security authorities. That is a lot of work but if parliament shapes the conditions for each and every case then I think you come closer to achieving your aim.

  Q747  Viscount Bledisloe: The last answer goes some way to answering my question. I was concerned about proportionality, not only to question whether it is a last resort but whether the crime you are seeking to discover about merits the level of scrutiny. I am thinking in particular of the powers given under the Prevention of Terrorism Act being used to discover whether the right child is going to the right school or the right dog is doing its business in the right place or all these minor things. Do you think this should be regulated by much more detailed statutes directed to particular authorities or an alternative method that you have a specific proportionality commissioner? We have heard from the information commissioner, and so on, but they tend to take into account whether the question of proportionality was considered but not whether the decision was right. Do we not need someone, maybe parliament, maybe not, to say this sort of power should not be used for this sort of much lesser conduct?

  Professor Oliver: That is a very interesting point and I have not come across the idea of a proportionality commissioner before.

  Q748  Viscount Bledisloe: It came to me about ten minutes ago.

  Professor Fedtke: The principle of proportionality in Germany is a constitutional principle and ranks side by side with human rights. It is one of the top elements which public authorities need to take into account in exercising their powers, whether surveillance, whether it is dealing with personal data, or whether it is any other function they might perform. I would hope, in a human rights culture, that step by step every public official dealing with these types of scenarios will have that idea in mind: my actions need to be proportionate to the aims. If you link particular activities, measures or powers to the controlling device of judges, as is very usual in other systems, you will have someone like a proportionality commissioner in the guise of the judge who will look at the measure, the information the public authority has, the aim it is trying to achieve, the personal circumstances of the individual affected and will balance these elements and either authorise it or withhold authorisation. In a way, that is perhaps good.

  Q749  Viscount Bledisloe: My concern is if you leave it to the individual in question, if you are the school attendance officer and it may be the last resort for finding out about the school attendance, and you resort to these measures you are not going to be the person to say that school attendance is not sufficiently important to use this sort of activity; you need an outsider.

  Professor Oliver: One body that might be able to deal with these questions would be the ombudsman, either the parliamentary ombudsman or the local government ombudsman. If someone is complaining that a local authority is using surveillance to see if they are sending their child to the wrong school, then they can complain.

  Q750  Viscount Bledisloe: By definition they probably will not know it is happening. It needs some affirmative person saying you cannot do this and not someone dealing with the occasional person who finds out and complains, is that not right?

  Professor Oliver: You are right. It would not cover everything.

  Professor Fedtke: Internal safeguards might be of help. I mentioned the top level in terms of intrusion in Germany. Those measures which affect the existence of the nation or a particular province, very substantial threats to the structure of the state such as terrorism, could fall into that if it is directed at eliminating or substantially hampering the existence of the state. Measures are authorised under that Act. Parliament exercises directly the power to authorise them to go ahead or not, but then internally the authority which actually takes action has to ensure that there is someone who supervises each and every piece of the enfolding story, of surveillance for example, who has the training to be a judge in Germany, which means a lawyer with specific legal qualifications. That is an internal mechanism. I think much of the discussion neglects the fact that public authorities themselves should be the first instance of protection. They should have internal mechanisms which safeguard in themselves the protection of the limits or adherence to the limits. That is an interesting example where you would not have the policeman who would then go off with authority but you would have someone supervising him because it is a measure which has a high intensity. You need someone with a legal qualification not just to review it and sign it off but to go along on each and every step and to say if this is OK.

  Q751  Lord Lyell of Markyate: You say someone with a legal qualification but we have this system of magistrates, 28,000 ordinary people reasonably trained, and in a way we look to them to do what is proportionate when it comes to penalty. You remember the dust bin case up in Cumbria. I thought the magistrates were entirely right to confirm that the penalty should be there but I rather questioned whether it was proportionate to have doubled it. Comment in the press and that sort of thing would, if we leave quite a lot to the courts and the magistrates, cause that to settle down.

  Professor Fedtke: The magistrates would be in a good position to add a further element of control in this area. I agree entirely with that.

  Q752  Lord Rowlands: I am puzzled and I come back to the point. You said the judges would be the judge of proportionality but what do the German commissioners do? Why are they not the judges of proportionality?

  Professor Fedtke: Data officers and data protection commissioners can be approached by citizens who feel that their rights have been infringed and they then have investigative powers.

  Q753  Lord Rowlands: Why go to a judge if that is the role of the commissioner?

  Professor Fedtke: The point is that the commissioner does not authorise surveillance activity. He is not the person who would strike the balance, look at the case or give the go ahead to the public authority but it would be the judge who would have to sign off the measure on the basis of the information provided to him by the public authority.

  Q754  Lord Woolf: I was interested in your combination of proportionality and specific legislation dealing with details of what you can and cannot do. If you are going to apply a proportionality test, then is not the idea of having specific legislation which says what you can and cannot do curtailed by the specific legislation so, in fact, what you are saying has an internal inconsistency?

  Professor Fedtke: With due respect, I would probably say the opposite may be true. Having a set of laws which starts off on a general basis allowing the policeman to observe things on the street without rushing off to the judge and ending with a law which actually circumvents the judge and says parliament itself will authorise this, is problematic. To have a set of statutes which determine or are designed to cater to different levels of intrusion is in itself an element of proportionality. You deal with the lesser intrusions in a specific statute, allowing perhaps more public authorities to draw on that authorisation, and the stronger the infringement, the stronger the limitation of a human right, the more specific is your legislation which tries to strike the balance between the right, which is more effective than in the first scenario, and the interest of the state in acquiring information which has to be weightier.

  Q755  Lord Woolf: I will press you a little further on this. It is very interesting and I think it is partly a cultural distinction between the German approach and our approach which explains why in Germany you have many more judges than we have in this country. It is important because certainly as a former judge, and still a judge in some ways, I found that one of the great weaknesses of the Data Protection Act is there was such a mass of detail in the legislation that nobody, not even the judges unless they were very specialist—the professors were very specialist but most judges were not specialists—cannot comprehend the legislation. If you are not careful, if you go into too specific detail, you are going to have the dust bin example. Especially if you are applying principles of proportionality, it is very difficult to anticipate all the circumstances. Would you at least agree with me to this extent that probably a very good way of going forward is to start off with general principles, then have a commissioner or some other person who supervises and oversees it in practice, and only when have you a very substantial experience do you go into legislation if you are entitled to do that? I know from actual data that we were falling very far behind and so we had to make a leap forward. There are dangers in that and for a general policy you want to be very cautious in rushing into legislation.

  Professor Fedtke: I agree with most of what you have said, the first point being interesting: the number of judges. A system which has so many judges can deploy them to give authorisations. If you are limited in the number of judges then that becomes a resource problem. I agree entirely. In terms of general principles, a data protection commissioner to supervise developments and to flag when things go wrong is entirely accepted and then to move into more detailed legislation when you identify particular areas which merit more detail. Again there is the question where do you draw the line between the general statutes and where do you cross the border to the need for a specific one. The Data Protection Act is very complex; I agree entirely. Reading and working with it is horrendous. Perhaps the answer to that is it tries to cover so many instances it gets very abstract. If you have a specific statute, if you look at the code of criminal procedure in Germany, if you look at the specific laws on the state level, meaning the regional level, which deal with surveillance and data protection or the use of data by police authorities, you will read them and you will understand them immediately because the measures are described in pure normal language.

  Q756  Lord Woolf: Is there not a danger of a conflict between the different legislation? There are all sorts of areas of demarcation so which legislation do you use? I was going to suggest to you that in the area we are talking about there is lot to be said for an holistic approach. I would not necessarily share the Canadian idea. There are two different principles here and it is always going to be a balancing act between two principles.

  Professor Fedtke: Again I agree. Let us go back to the Data Protection Act which exists in Germany and which exists in this country. The Data Protection Act in Germany is the foundation for all public authorities. All public authorities are inevitably bound by the Data Protection Act; there are no exemptions. The system then goes on to say if you have specific legislation that may, if it is so prescribed, qualify the general application of the Data Protection Act. The higher you work yourself up in the hierarchy of laws you will find more specific information about what particular authorities can do, but the Data Protection Act, as such, is very broad and covers everything. In the United Kingdom you have a number of exemptions which are quite substantial. They are difficult to define and I think they make the whole matter much more complex than perhaps with a different approach relying more on specific legislation.

  Q757  Lord Morris of Aberavon: What body do you believe would be best placed to protect the constitutional rights of citizens against over-zealous surveillance and data collection? You have the options of parliament, the courts, some other body, but is not the basic problem what information or knowledge they have in order to act as some kind of policeman? Within memory we have had allegations against MI5, evidence given about being economic with the truth, fears, warranted or unwarranted, by people from the prime minister down about surveillance. How can you get parliament or a judge to be informed so he can take the protective view of the citizen?

  Professor Oliver: There could be a new official called perhaps not the proportionality commissioner but a protection from surveillance commissioner who would be concerned partly with general policy issues, in other words to take a broad overview of what is happening. If people are particularly worried about dog fouling, this commissioner could look into that and then report to parliament, and obviously to the public, providing some actual factual information to inform people's comments about it. That approach might help. That person might be an officer of parliament or an independent commission with that remit. They would overlap quite a lot with the Equality Commission but we can live with overlaps. That might be an institutional arrangement which would provide parliament and other bodies with the background information they need to engage with the problem.

  Q758  Lord Morris of Aberavon: How can he be assured that he has the necessary information? You may appoint the body but how does he know what is happening?

  Professor Oliver: He might be given powers of access, the right to demand information from the bodies he is investigating.

  Q759  Lord Lyell of Markyate: Two of the ways that we deal with it at the moment are you cannot necessarily stop it beforehand, and obviously a commissioner cannot be looking at everything all the time, but when it comes to be used you make the evidence inadmissible and when they try to use it when they should have never been doing it some penalty could fall into place. Are not those two pretty practical protections?

  Professor Oliver: Used appropriately, yes. I myself would be a little concerned about a serious terrorism trial collapsing because information that was extremely relevant had not been properly obtained. There is a big debate there I know. A subtle approach to these problems from various angles would be very helpful. For example, as you are suggesting, to discipline police officers or whoever who have overstepped the marks, making it quite clear where the bounds of their authority are, would be one helpful approach. Elaborating codes or standards for certain organisations as well would be another way because at least then the officials know what they can and cannot do or whether they are somewhere on the edge and that gives a peg on which to hang criticism of them.

  Lord Lyell of Markyate: Your first point, which I agree with, is that a trial should not necessarily completely collapse. The courts have indicated sometimes that improperly obtained evidence can be admitted but at least the fact that it was improperly obtained comes into the public domain and might be dealt with through one of the other routes.

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