Examination of Witnesses (Questions 922-939)
Mr Tony McNulty MP
25 JUNE 2008
Q922 Chairman: Good morning Minister.
May I welcome you to the Committee; thank you very much indeed
for joining us. We are being televised this morning so could I
ask you please to identify yourself for the record.
Mr McNulty: Tony McNulty, Minister of
State at the Home Office with responsibility for policing, crime,
counter-terrorism and security.
Q923 Chairman: Minister, the Information
Commissioner, as well as some others, has warned that the United
Kingdom is "sleep walking into a surveillance society".
Would you recognise such a thing as a surveillance society? Do
you think that the Information Commissioner's warning is justified?
Mr McNulty: I think his warning is justified
in the sense that there is a potential if we do not do things
in the right fashion and regulate them appropriately that we may
end up with something approaching a surveillance society. However,
in the next breath I would say that I am not entirely sure what
the Commissioner or anybody else means by a surveillance society.
If they mean something approaching 1984 where every single element
of what an individual does is regulated, surveyed and accounted
for by some big brother state, then I do not think we are anywhere
near that and I do not think we are sleepwalking towards it either.
If they mean that generally as a society we are struggling with
how to deal with the very positive benefits of new technology
in all sorts of ways, the interface between the individual and
data both in the private and public sectors and how we wrestle
with those issues, then I think it is a warning that we would
do well to heed to prevent sleepwalking, which I do not think
we are doing at the moment anyway. I hope that makes sense.
Q924 Chairman: Would you yourself
define privacy wholly in terms of individual rights and values,
set against the interests of society as a whole? Or would you
recognise any social importance, on the other hand, in privacy
in terms of its contribution to the democratic society in which
people feel free to participate without the fear of being suspected
or watched?
Mr McNulty: I think the warnings from
some about a suspect society are all the more interesting and
I think that is absolutely counter-intuitive to a democracy. As
our democracy has developed we have struggled with the rights
of the individual and privacy and that individual's responsibility,
and the duty afforded to the state in terms of public protection
and public welfare. It is always—I think it always has been—a
balance and the debate we are having now is about striking that
balance, given other factors like, as I say, technology data and
all the other elements. I would, I think, as most people should,
weigh in that balance very strongly the rights of the individual
and those broader rights of the state. Where there is a contest,
other than in extreme cases, the rights of the individual prevail
rather than the state; that is our democratic tradition and value.
Q925 Lord Peston: I tend to bore
all our witnesses by quoting John Stuart Mill's famous dictum
and I will quote it again to you. He says that there is a circle
around every individual human being which no government—be
it that of the one of the few or the many—ought to be permitted
to overstep, in other words there is this private area. When I
put it to one of the regulators who was a judge and asked him
whether that applied now—I think he was regulating phone
tapping or something like that—he told me that that is dead.
Parliament has passed a law that enables phone tapping and similar
bugging to take place and therefore his view is merely to judge
whether the case is appropriate. Do you have a view on that? Do
you believe in the original 19th century view of one of the great
English philosophers no matter what? You seem to be putting a
trade off view.
Mr McNulty: I think it has always been
about balance and I think John Stuart Mill was trying to strike
the balance.
Q926 Lord Peston: No he was not;
he categorically was not.
Mr McNulty: Let me finish. For him the
balance then was that there was an absolute circle of privacy
and space around the individual. I think that is still absolutely
appropriate as an aspiration. My difficulty with that is that
whatever the state does the use of technology, data and a whole
host of other things will prevail anyway in the private sector.
I am sure we will get onto CCTV but we think on estimate something
like 80 per cent of the cameras are private so of course there
needs to be a regulatory function for the state of what goes on
in the private sector as well. I should think John Stuart Mill
or anyone else will find it all the more difficult to function
today, notwithstanding the state, in that absolute privacy circle,
given what he wants to do with banks, buying houses and all sorts
of other things. In that sense I do think things have moved on.
Would I recast John Stuart Mill and come up with an equivalent
sentiment for today given what I have said, I think I would and
I think the starting principle must still be, as much as possible,
to leave the individual citizen unfettered to go about their business.
Q927 Lord Peston: Are we to interpret
what we are observing today as temporary, namely that there are
some very special threats in our society at the moment—rather
like things that were introduced in the war—or do you see
what is happening is very much the now and there will not be a
reversal?
Mr McNulty: Much of what is subject for
debate today I think is today's normality. CCTV, DNA database
and a whole range of these other elements are not there as a response
to exceptional threats and exceptional circumstances. Clearly
much of what we do specifically on counter-terror and other elements
absolutely is; you are about to have the great fun of the debate
we have just finished in terms of the Counter-Terrorism Bill to
look at that exceptionalism. I do not think it would be fair to
say that over recent times governments of either party have put
CCTV in high streets or developed the DNA database purely as an
exceptional measure for exceptional times; I think that is routine
in the 21st century given all I have said about the utilisation
of technology, data and everything else by the private and public
sector.
Q928 Lord Peston: The other thing
that those of us who are fairly ignorant learned about this, Minister,
is the enormous technical advance that has occurred in the ability
to engage in surveillance now. Essentially the worry one has is
that if the technology exists why not use it? Do you have a role
that says that it may exist but you should not use it?
Mr McNulty: We do and we equally have
a role that asks if the technology is getting ahead of us so that
whatever is today's highly developed technology is that still
going to prevail for the very surveillance purposes that the state
requires it in terms of people's public safety? Is that going
to be relevant in five or ten years' time? So we have both, keeping
ahead of technological developments to say that it might be there
but actually there is a wider good that says you should not use
it. Equally, is today's technology going to still be available
to protect us in five, ten, twenty years' time?
Q929 Lord Rodgers of Quarry Bank:
Turning away from the very important philosophic questions as
to your own role, I know we are told exactly what your particular
roles are within the Department, but what is your relationship
with the other major departments? Are you chairman of a cabinet
committee with other members? We are going to see Michael Wills
later, do you have a competitive attitude? I have a piece of paper
from the news on Monday morning on the question of councils being
told to stop using spy laws for trivial issues. That is not a
statement from a department but nevertheless it is close to Government.
Would you be involved? Would you react to that? Apart from seeing
the press cuttings would you think it would affect your view?
Ministers do not normally sit down just thinking; they are expected
to act upon the consequences. I am not expecting you therefore
to sit for a long time thinking about the nature of surveillance,
but how does it work? I am asking about the system of government
in that respect.
Mr McNulty: I will come back to that
example, if I may, after a few opening remarks. It depends on
the area. Meg Hillier in our Department is more readily the Home
Office minister charged with cross-cutting use of information,
databases and everything else. That happens to be her responsibility
but I work very closely with her. She will sit alongside colleagues
on the relevant cabinet committees looking at those wider issues.
We cast our net wider but in terms of counter-terror we do have
weekly meetings with a whole host of departments, including ministers,
on a regular basis updating not simply the security position but
also then taking some thematic conversations about matters such
as this and broader from a range of departments. We are absolutely
plugged in across Government in terms of the architecture and
increasingly I think joined-up government is both a clumsy phrase
and probably still an aspiration, but that is what we need regardless
of politics in terms of addressing these issues and that is what
we are trying to do. If we go back to Sir Simon Milton's letter
as a particular example, I had already got in touch with John
Healey (my equivalent in the Department for Communities and Local
Government where local authorities sit) to say that we should
meet the Surveillance Commissioner to discuss some aspects of
how local authorities are using the RIPA legislation, so therefore
reactive rather than just thinking about things. In the light
of what Sir Simon Milton said I have written to Sir Simon to ask
him to come in and talk to myself and to John Healey as well.
I thought that was very useful on behalf of the Local Government
Association. If you read his letter rather than just the headlines
he was saying that these are important powers to deal with aspects
of statute that local authorities are charged with control of
and if there are abuses or misuses around the edges then that
goes to the integrity of councils using these powers in the first
place. It was not quite as sharp as some of the headlines were
saying. That is exactly what I was thinking which is why I have
asked John Healy to meet the commissioner and I have asked Sir
Simon Milton to come in and see us too. If you read the RIPA legislation—the
clue is in the title: Regulation of Investigatory Powers Act,
not counter-terrorism but you can use it for the Litter Act as
some would have it—of course terrorism and security was
a key part of deliberations in both Houses but it was about some
defence of the public from these powers invested in regulatory
bodies, so we do react pro-actively (if that is an appropriate
way of saying it) rather than simply sitting back and swerve the
rigours on a daily basis and just carry on regardless.
Q930 Baroness Quin: Do you feel in
joined-up government that there is enough focus on privacy issues
in terms of the balance between those and security giving due
weight to the privacy aspect? Are there discussions across Government
on privacy?
Mr McNulty: There are discussions and
the Prime Minister said last week that he is asking the commissioners
in their turn to deal with the issue of privacy impact on the
public and other matters in each of these areas. To go back to
the original question, I do not accept the notion that we are
sleepwalking into a surveillance society but I do accept that
a lot of things are happening on a whole range of different fronts
and it is difficult for any individual let alone the state to
see what the cumulative impact of that is. I think both in his
liberty speech some months ago and in the speech last week the
Prime Minister was getting to a place to say "Let's have
a look at the totality now of what prevails". I remember
once arguing with him when we had the ID cards debate and trying
to picture a normal day in an individual's life and the interactions
they had with all sorts of databases, technology and potential
surveillance or audit trails of their activities. You can cover
most of the day and not even mention the state. I do think we
need to look at that broader impact a bit more readily.
Q931 Lord Rowlands: Minister, we
have heard from a variety of witnesses who have expressed deep
concern at the way in which we legislate on the issue, that powers
to collect and share personal data are reserved more for secondary
legislation than primary legislation and, as a result, we have
seen a kind of creep—a very considerable creep—an
expansion by stealth, as it were, of both collecting and sharing
data that a member of either House could not have spotted in the
primary legislation. We have been provided with an example by
Dr Chris Pounder in his detailed written evidence on the ID Card
Act where he illustrates that point, the Children Act 2004 and
the Anti-Terrorism, Crime and Security Act 2001. The National
Pupil Database started off quite innocently in 1997 and again
it has grown and grown and grown. First of all, how do you do
that? Secondly is it not time that we had a kind of parliamentary
view of privacy impact assessments on bills and legislation?
Mr McNulty: On that latter point I think
that is very, very interesting and one on which there should be
further debate. Quite what a privacy impact assessment would look
like compared to some of the other impacts would be very, very
interesting and I would not decry a move in that direction at
all. On the broader point I think actually the person who prayed
in aid the ID Card Bill was fundamentally wrong on the level of
some notion of data creep or function creep because everything
available to Government in terms of ID cards was quite properly
put on the face of the Bill and any changes to that have to come
back to the House and there are a whole series of reasons in the
Bill that go to the raison d'être for the register that
they have to pass before they even go into orders. He is right,
if I may say so, on the fact that the ID cards have increasingly
more pieces of legislation; I quoted the other day 71 and was
corrected to say that it was 74 order making powers springing
from the ID Card Bill, but he is wrong in the essence of that
meaning function creep in terms of the data. The data is very,
very explicit on the face of the Bill or in schedule one. The
issue is about whether it is appropriate for bills to more and
more readily look like Christmas trees with all sorts of order
making powers and, if you are interested, I am having a hard time
following when that order is going to come subsequently because
there are invariably delays to these things. That is a moot point
and one that we should look at. The more serious matter is the
principles that at least should be on the face of a bill. However,
I have done enough bills to know that if you go in for undue specificity
in terms of expressing things on the face of the bill, you sometimes
cause more problems than leaving things more general. In the Counter-Terrorism
Bill that you are about to inherit I think we have been as parsimonious
as we can be on order making powers, save for the sort of 42 day
model but I do not want to go down there necessarily today unless
your Lordships want to. I do accept the premise that at least
very, very clearly the principle and as much as possible the explicit
functions and criteria for any data should be on the face of a
bill as much as possible.
Q932 Lord Rowlands: In the case of
Dr Pounder's evidence, will you give us a written comment on it.
Mr McNulty: I will.
Q933 Lord Rowlands: On the broader
question I would like to pursue this question of a kind of privacy
impact assessment on legislation and to say that some minister
bringing forward a bill would have to make it very explicit as
to what kind of information is being sought and what is going
to be shared as a consequence of the legislation. Would you accept
that alongside the human rights issue?
Mr McNulty: I think we are almost half
way there in the sense that any new legislation to do with surveillance
information or data will invariably have the comments of the relevant
commissioner as part of the process.
Q934 Lord Rowlands: I have not seen
any explanatory memoranda.
Mr McNulty: Not necessarily in the explanatory
memoranda or as part of the official documentation, but fairly
soon after the publication of the Bill you will have the views
of the commissioner forthcoming whether requested or otherwise.
That is perfectly fair because that is their role. I am not offering
that instead of privacy impact assessments, especially in areas
of real sensitivity. As I say, I think it is a point worth exploring.
I am trying to think through the practicalities of what it would
look like rather than dismissing the notion. I think it is a fair
point.
Q935 Lord Rowlands: You mentioned
earlier that technical innovation almost outstrips legislation
and even decision making and ministerial accountability. Is there
any way we could have a parliamentary process where renewal of
a power would be needed when technology has actually changed sufficiently
to create a much bigger problem for the privacy of an individual?
Mr McNulty: I think if there is substantive
change it should come back in some form or other, whether it is
an information point or for renewal. You will know that the Leader
of the House of Commons is looking at the notion of almost annual,
if not bi-annual, reports back on legislation to see whether it
was implemented, whether it was all utilised.
Q936 Lord Rowlands: Post-legislative
scrutiny.
Mr McNulty: Post-scrutiny, absolutely,
and I think that might be the appropriate way forward for newer
legislation but I do take the implicit point you make about a
whole host of legislation now that was at least at its statutory
root developed in an entirely different time in terms of technology;
that might be fair. To give you an example, the Police and Criminal
Evidence Act has stood up extraordinarily well with tweaks along
the way. We have just done a review on it and the most remarkable
thing about the review is how comfortable people are on a consensual
basis with the essence of it. If you look at it utterly literally—I
have seen the outcome of this—it says there should be tape
recordings of interviews and they should be portable. Every time
I go to police stations I see cupboards stacked with cassettes,
sometimes changed a little bit in terms of smaller digitals. We
have requested permission under an order to conduct an experiment
in the East Lancs Division of Lancashire Constabulary to do it
on a digital recording basis with encrypted and sole access by
the police and the defendant's side who require it so it is absolutely
secure so nobody is lugging around cartloads of taped interviews.
That technology was not anticipated in 1984.
Q937 Lord Rowlands: Would that require
a change in legislation?
Mr McNulty: I think we can implement
that universally on a wider order. We certainly have to bring
an order to both Houses to even go down that route as an experiment.
Perhaps I am proving your case rather than otherwise by saying
that we can probably do that through secondary legislation. There
has been a good deal of tweaking and changes to PACE by secondary
legislation, broadly with agreement that it has been improved
rather than otherwise, which is why the overall statutory roots
have stood the test of time.
Q938 Lord Morris of Aberavon: Minister,
I am encouraged by your pro-active role following the Milton letter,
but the Home Office must have known for a long time that there
were a lot of controversial decisions by local government long
before the Milton letter which may well be the basis for his concern.
We have heard cases, we have cross-examined witnesses from dustbins
to school catchment areas so this has been well-known, in the
press for a very long time of local authorities apparently exceeding
what might be regarded as a proportionate action to RIPA. Had
that not occurred to the Home Office before? Secondly, I think
Charles Clarke was in your seat when he sent a letter when RIPA
was being taken through the House to Bill Cash. I do not have
it with me today but we can get a copy for you. He gave a categorical
assurance that RIPA would not apply to local government. Should
these powers be given to local government, whatever the basis
of them?
Mr McNulty: As I say, if we afford a
whole host of statutory powers to local government and expect
them to enact those powers, then if they feel they need the sort
of powers referred to in RIPA then that is entirely a matter for
them, so long as they are used on a proportionate and rational
basis. The key word you latched upon in your description was "apparently"
because I do not have hard evidence that there are local councils
up and down the country routinely misusing, abusing or wrongly
utilising RIPA. I have significant anecdotal evidence—if
I can say it in those terms, certainly not substantive empirical
evidence—from some of the newspapers that it has been used
disproportionately which I think may well be the case in one or
two of the dog fouling, schools and other cases. If we are seriously
asking local government to carry out its statutory functions around
a whole host of things like the dispersement of assorted benefits,
like environmental health, fly tipping and a whole host of others,
and to challenge serious criminal activities that matter to their
communities, we need to give them the powers to do that. I do
accept that there is sufficient disquiet, not least from Sir Simon's
letter, that goes to the integrity of local government using those
powers at all, and that cannot be right which is why I am very
keen to meet him with John Healy and why I had already set in
train a meeting with the Surveillance Commissioner to discuss
it with him. It would be unfair of me to say at this stage that
there has been utter and broad misuse.
Q939 Lord Morris of Aberavon: There
have been cases at the edge.
Mr McNulty: At the edge may be a fair
description and I think we need to look at that in more substance.
| 
