Surveillance: Citizens and the State - Constitution Committee Contents


Examination of Witness (Questions 860-880)

Dr Chris Pounder

18 JUNE 2008

  Q860  Lord Peston: Unless you assume that we, both in our House and in the Commons, are a bunch of complete idiots—which is not an impossible assumption to make—why does someone not just get up and say it?

  Dr Pounder: That is the point I am making.

  Q861  Lord Peston: There is nothing stopping them. You are criticising the Government. Why is no Member of Parliament in either House getting up and saying "Isn't it obvious what this is for?"

  Dr Pounder: It has been obvious to me for a very long time what the NIR is for but the public statements are completely the opposite. If you go back to the identity card, look at David Blunkett's original paper, asking should we have an entitlement card, it stated categorically that the population register was a different system. The Government said the systems were really quite difficult. I think there is a perfectly good argument for using the NIR as a population register. The point I am making is, let us have that argument as part of the identity card project when the legislation is going through, because that is when the decision was taken to do it.

  Q862  Lord Peston: You are really accusing Members of both Houses of not quite doing their own job. Both Houses actually contain some very able people who could take Ministers apart with ease.

  Dr Pounder: The obligation on government is to subject to scrutiny. That is the point. Yes, we can argue the pros and cons outside but it is the fact that it is not one instance. There have been a number of instances where Ministers, I should say, struggle to be economical with the truth.

  Q863  Lord Lyell of Markyate: I am really trying to get at what you think the mischief is here. I perked up when you talked about Supergun and Matrix Churchill because I had some involvement in those. I do not know whether you can illustrate it with those two examples. Start with Supergun: did Ministers know something or did civil servants know something which they did not tell Parliament about? What is the point that you are making?

  Dr Pounder: I cannot go back; I cannot remember Supergun. I would have to get out the Scott Report and thumb through the 20 volumes. The mischief is essentially this. If government say that they are not going to use the National Identity Register as a public information resource, you have to take that at face value, but behind the scenes they decide they are going to use it as a public information resource, and they prepare written statements to Parliament—the civil servants do this—which are not released for some reason. How can you have an informed debate if that sort of thing is happening?

  Q864  Lord Lyell of Markyate: I understand that. Just go on. Do you think we should be frightened if they did both say and use the NIR as a public administration resource? Is that a frightening thing or not?

  Dr Pounder: It depends how it is done. If you are going to share information, there are essentially three ways you can do it. The first way is with consent; the second way is by statutory requirement, in which case you do not need individual consent; and the third way is you have a statutory gateway but you allow an easy mechanism to object. Those are the only three ways you can do it. What the Government have done is said, "We are going to share information for public information resource without the consent of the individual concerned." That is what their legal advice says on the website, on the CIP website, so they have taken legal advice to use the identity card database as a public information resource without the consent of the individual concerned. My belief is this: when can the state interfere with private and family life? Crime is one, national security, there is a whole list, but public administration in my view is not in that list. If Parliament takes a decision to do the latter, then of course we can engage the parliamentary process, but if Parliament is not informed of the decision, lo and behold, it is going to go ahead willy-nilly, using Statutory Instrument powers some time in the future.

  Q865  Lord Morris of Aberavon: It is basically a question—and I am not coining the phrase—of the Government being economical with the truth.

  Dr Pounder: Very economical with the truth, I think.

  Q866  Lord Morris of Aberavon: You improve my question!

  Dr Pounder: This is why I am quite keen on, for example, the ability to link human rights and data protection explicitly, so that if these powers are used in a way that some people may feel detrimental ... Remember, you can only scrutinise the proposals before you. The human rights is implementation. If the implementation does not mirror, then somebody can easily take a human rights case through the Data Protection Act if you link the two together explicitly, which I think is something that would be very valuable.

  Q867  Lord Morris of Aberavon: I am going to take you up on the role of primary legislation and secondary legislation. The Joint Committee on Human Rights criticised the Government's approach to this on data sharing. There is nothing new in this. We have always operated on general clauses to be implemented but if they go well beyond the assurances they gave, that is a matter that is suspect. I have been furnished with a letter from Charles Clarke, who was then Minister of State when the RIPA Bill was going through, where he gave categorical assurances to Bill Cash, MP: "I can confirm even at this stage that such powers will not be available to local authorities." Lo and behold, in 2003 such powers were given to local authorities for the purposes of preventing or detecting crime or of preventing disorder. Whether they have kept to that remit is another matter. Do you share the concern of the Human Rights Committee and what would you do yourself?

  Dr Pounder: I do share the concern of the Human Rights Commission. Is it the Human Rights Committee or Commission?

  Q868  Lord Morris of Aberavon: It was the Joint Committee on Human Rights in their 40th report.

  Dr Pounder: I do share their concerns and I do think they are right. I think Parliament needs to be more informed and more involved. I do worry about Ministers arguing "Don't worry about these Statutory Instruments. We will get it right and they can be struck out." For example, in the case of Poole, if there was an ability for the Commissioner to serve, for example, a human rights notice and test whether or not the interference was necessary in accordance with RIPA, the matter can be resolved in that particular way.

  Q869  Lord Morris of Aberavon: Is Poole a unique example, or is it one of many? We have had witnesses here, senior officers of local government, and they swear they take a proportionality test, and it is done at a certain level, something akin to a superintendent in the police force. Is Poole a glaring example of something well beyond preventing or detecting crime?

  Dr Pounder: Crime is milk bottle theft and murder, is it not? It is proportionality. It is on the cases. Yes, you can have officers assessing proportionality, but who assesses whether or not the officer came to the right balance? It is back to that particular point again. If you have a single point of contact who identifies the balance between the investigator and the interference—interference and non-interference—but that authorisation officer in a sense sometimes makes mistakes, obviously. We are all human, but there is no mechanism apart from somebody taking a case under the Human Rights Act for the way those officers who make the assessment make the assessment in accordance with the human rights obligations. There is no way of checking that simply, cheaply and effectively.

  Q870  Lord Morris of Aberavon: We have got the point of the need for a mechanism to check but my earlier question was is Poole a unique example or do you know of any more? It seems to me deciding whether children are going to the right school, or whether the dustbin is only partially open when it should be shut, does not seem to me to be detecting crime or preventing disorder.

  Dr Pounder: It could be an environmental crime. I do not know. This is the sort of area where you do need an extra tier of counterbalance.

  Q871  Lord Peston: I am sure from listening to this Committee for the last few weeks that we very much take the proportionality point, particularly in the Poole case, which I think we would all agree was disproportionate, but would it not be equally disproportionate to take that particular mistake to court under the Human Rights Act?

  Dr Pounder: Absolutely.

  Q872  Lord Peston: In the end, is the answer not both to publicise the case in the hope that the point gets across and then to shrug and walk away?

  Dr Pounder: That might be the correct solution but let us say, for example, if the individual concerned had been damaged in any way, they would obviously want some kind of redress.

  Q873  Lord Peston: Even then, are you sure that is right? You are a lawyer and I am not. My experience of life is that I have been damaged over the years several times when I have felt a grievance, but in the end, you win some, you lose some. That is my attitude to life. We do not want to encourage people to litigate on every occasion.

  Dr Pounder: No, absolutely, and the ability to go to the Information Commissioner to ask for an assessment means it might not even get to the courts.

  Q874  Lord Morris of Aberavon: It is the mechanism you want.

  Dr Pounder: It is the mechanism, the counterbalance mechanism, yes.

  Q875  Baroness Quin: In your written evidence you state that a major problem lies in the fact that the public body or Minister responsible for policies, procedures that require interference with private and family life can also establish policies and procedures which protect the public from over-zealous interference. So you seem to see the problem of Ministers acting as both prosecutor and defender in this domain. How keen are you on the separation of these two roles? How do you see that separation being reflected both in government structures and in parliamentary procedures?

  Dr Pounder: I am very keen that the more severe the interference, the wider the separation should be. For example, in the context of, say, national security cases, I would prefer a mechanism via the courts rather than, for example, the Home Secretary signing off on warrants. One of the interesting things with, for example, the communications warrants and things, there are about 2,000 signed each year, and if you look at the parliamentary evidence, Home Secretaries down the ages will say "We take this very seriously." I am sure they do but if you have 2,000, that is around about ten per day and if you are going to take something seriously, are we saying there is a signing ceremony? Just look at the mathematics of it. My own view is that to have separation, I think the Commissioners should report to Parliament on various issues. For example, the ID Card Commissioner will report to the Home Secretary and the Home Secretary will report to Parliament. I think a much better mechanism would be that the Identity Card Commissioner reports to a Committee of the House, the Committee of the House decides what is published following advice from the Government, the Committee of the House could ask a Commissioner to do, shall we say, an investigation into various things to inform the public debate as to what the correct balance is, whereas at the moment the two things can be quite incestuous. For example, the appointment of a Commissioner: at the moment often the Home Secretary and the Prime Minister appoint the Commissioner. I have no difficulty with that but it might be more balanced if a Committee of the House interviewed people who were recommended by the Commissioner and a Committee of the House appointed the particular Commissioner. It would then be much more clear that Parliament is informed in the process. There are quite a lot of things that need to happen in Parliament. The other issue is with Statutory Instruments; for example, I would like the ability for Statutory Instruments to be amended, so that if there was something contentious, Parliament can have an informed debate. The whole mechanism is that Parliament has to have the ability to scrutinise the executive. That is, in a sense, the thrust.

  Q876  Lord Rowlands: You bring up this business about a potential conflict of interests when the Department is both interferer and defender. Would not the best idea be to embed the whole concept of privacy consciousness in each and every Department with privacy officers, the PIAs and the rest of it? Would that not be the best way to cure the problem, not the symptom?

  Dr Pounder: I think recent security lapses have shown there is a cultural problem, and there is a government data handling review, from which I understand—it has not been published yet but I understand that each Chief Information Officer of each Department would have the obligation to make sure that basically procedures are followed. The difficulty is essentially whether that becomes a tick-box operation. Say, for example, with privacy impact assessments, you can see it becoming a part of the bureaucratic process: privacy impact assessment, box ticked, done that. It has got to be something more robust.

  Q877  Lord Rowlands: When we were in Canada the Canadians did not believe that their Information Commissioner should be both responsible for freedom of information and also privacy; they thought it should be divorced. Do you think there is a problem with the Information Commissioner wearing these two hats?

  Dr Pounder: I have never been a fan of him wearing two hats, to be honest. I think there is a conflict. When the Information Commissioner got the FOI-type responsibilities, I was thinking that there was a conflict between the two, and if there ever is a conflict between the two, there has to be some publicly transparent way of resolving that conflict. That was my own view.

  Q878  Lord Rowlands: You are the first witness to say "yes" to that argument.

  Dr Pounder: Yes, we are a declining species. I have not been a fan of it—I put it that way—but it seems to work when there is a stressful situation. I do not know what arguments go on inside the Commission but where there is a conflict, the resolution of that conflict has to be in the public domain, and separate bodies would allow that.

  Q879  Lord Lyell of Markyate: Could you please explain the recommendation concerning parliamentary scrutiny of secondary legislation as discussed in your second principle, the approval principle? The approval principle seems very sensible on its face, but you go on to say that to strengthen the scrutiny, Parliament could permit a Select Committee to take privacy under its remit. How could this help to overcome the expansion of data collection that results from the current piecemeal approach to legislation? Are there some other measures which might be helpful in this regard?

  Dr Pounder: I do not think it would do anything for the expansion, as you mentioned in the question, but it would make it more accountable. Remember, that approval principle follows back behind the justification principle, the fact that government is open in relation to information about its proposals, and then the approval principle is basically for Parliament to challenge the assumptions of government. That is what the mechanism is. If you have that mechanism, then the data sharing arrangements that are contentious would become less contentious if there had been an open debate about the pros and cons of the subject matter. Remember, the other thing that I mentioned was that approval assumes that Parliament has the mechanism to get the information it needs to do the debate, basically, about their particular mechanism.

  Q880  Lord Lyell of Markyate: It seems to me to wrap in with your point that one is allowed to collect data for very broad principles, like better public administration: how long is a piece of string?

  Dr Pounder: Absolutely. One of the problems, for example, with the Data Protection Act is that it is purpose-orientated, so the principles are relevant to a purpose. If you have a purpose as broad as public administration, then of course, the principle is more or less wished away. What is relevant to the purpose of public administration? When you look at data protection issues, the key thing is not whether the police should get information about terrorists; it is how it is done, and how it is done is in the level of the fine detail. Basically Parliament is not necessarily equipped to deal with this level of detail when it is dealing with the actual legislation. The "how" is the implementation. If Parliament is fully informed, if you have regulators that can report to Parliament about particular issues, then Parliament can scrutinise the "how" as well as the "whether", if you see what I mean. Of course, the fact that Parliament can scrutinise it may give the thing full legitimacy. If it is done in an underhand way and nobody knows and it comes out from the blue two months later, people say "Hang on a second, what is happening here?" Remember, if people do not trust public authorities, they are not going to provide information to them. They are going to be economical with the truth. If a public authority wanted my telephone number and I did not want to give it, I would give somebody else's telephone number. That is the sort of thing that would happen, because basically, the public have to trust the public authority, and part of that trust is effective parliamentary scrutiny of the process, which I am not a hundred per cent sure occurs at the moment.

  Chairman: Dr Pounder, thank you very much indeed for joining us and for all the evidence you have given, which has been extremely illuminating for us.





 
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