Examination of Witnesses (Questions 940-959)
Mr Tony McNulty MP
25 JUNE 2008
Q940 Lord Morris of Aberavon: It
may be the reason why Charles Clarke sent a letter in 2001 and
the order was introduced contrary to his promise in 2003.
Mr McNulty: I could not possibly comment
on that. Certainly looking from 2008 and what I know of RIPA I
find it astonishing that anyone would say of all the public authorities
local government probably would not have scope to utilise this.
Q941 Lord Morris of Aberavon: We
will get the letter for you.
Mr McNulty: Thank you.
Q942 Lord Morris of Aberavon: Could
I ask you about the tests of necessity and proportionality which
officials at whatever level have to reach in the sense of whether
it is appropriate to use powers in data collection and surveillance
when there is a lack of benchmarks on how specific proposals could
be judged? Have you thought about that?
Mr McNulty: We have in a very general
sense. Clearly the more sensitive and the more intrusive the surveillance
the more at the centre we are very, very clear about what those
edges—as you referred to—are and what is permissible
or otherwise. That is why it still remains the case that warranty
is signed at secretary of state level for those very, very intrusive
but necessary interventions. I think the discussion about Sir
Simon and local government goes to the broader issue about those
thought processes and, as you say, we are not anticipating either
function creep or power creep, if that is appropriate and people
pushing at those edges. To go back to one of my earlier answers,
I think that is done fairly rigorously in its own terms within
a bill but I am not sure if sufficient is done to put that bill
in the context of what is already out there, rather like the broader
point about privacy and impacts and how this one additional element
adds to the greater cumulative lot that is out there. I thought
it was interesting—and I tease my officials about this—that
at the end of the supposed questions that were coming my way it
said, "What, in your view, are the four processes through
which officials ought to go?" I could do a lecture on that
in the broader general sense but not specific to these issues.
Officials do consider proportionality and matters like that. I
think collectively Government might have to learn a lesson about
how to that more readily across the piece. That is almost the
same point I was making about joined-up government.
Q943 Lord Morris of Aberavon: Proportionality
is not always an easy decision and given the lack of benchmarks
which I have referred to already, lack of training perhaps. We
have had a look at Government officials before us; some of them
have been very strong in their views as to what they can do and
think that they can use their powers for any crime in sight which
is worrying. The lack of training, the difficulty of the decisions—they
are not easy decisions—has any thought been given as to
how you ensure that those who exercise these powers have the necessary
training to take not easy decisions?
Mr McNulty: I think we are relatively
comfortable with the level of senior management on which these
serious decisions are made, but like a lot of activities out there
in the broader domain it is when the ability to utilise that power
trickles down to the front line, as it were, that I think there
may be broader concerns. That is certainly something I am keen
to meet both with Sir Simon and with the Local Authority Coordinator
of Regulatory Services (LACORS) to discuss this with them. I fear
that if there are people pushing at the edges it is with or without
the licence of those senior managers who do the signing off and
we need to bottom that out and make clear which it is. I do repeat
that these are very, very sensitive and serious powers that if,
at the edges—as you describe it—they are open to misuse
go to challenging the entire integrity of quite proper use of
these powers by local government and other regulatory authorities.
Q944 Lord Rowlands: Is it not the
culture of the agency or department? You can have a department
which quite rightly focuses on delivering a better set of services
to the citizen and therefore automatically coming to the conclusion
that the more information they can gather, the more data sharing
you can take, that that will be a great facilitator of great services
and there is no-one in that department or agency who will ask
about privacy, the other side of the coin.
Mr McNulty: I am not sure that that is
the case. Certainly from the Home Office's perspective and the
prime minister's perspective, notwithstanding the sensitivities
around these matters, they are convinced that data minimisation—another
ugly phrase but it will do—should be the starting principle,
that is: what data does a department or particular aspect of Government
require to provide a service, deliver goods or whatever to the
citizen? It is not: let us take all the data and then we can work
out what we need to utilise to deal with and discharge our functions
as a department.
Q945 Lord Rowlands: Do you think
there is a belief in privacy and a culture embedded in government
departments?
Mr McNulty: I think there is an increasing
culture of being alive to the impact of surveillance and data
collection and a guiding principle of greater data minimisation.
So the starting premise is to resist the function creep and the
data creep.
Q946 Lord Peston: Can I ask you to
reflect on the following? Most of us are older than you but if
I had been told when I was a young man that there would come a
day when my local authority would actually want to know the details
of what I put in my rubbish bin—or in my case in my three
different coloured rubbish bins—I would have said you were
mad, that we would never come to a state of affairs where that
would happen. Why would they remotely feel that that was fundamental
to their delivering a service that I want? We now live in a society
where there is not only that but they engage in really detailed
scrutiny of what we do with our rubbish. There may be arguments
in favour of that but in terms of respecting one's privacy I would
have thought that that is a cause for concern, particularly given
the threatening nature of some local authorities. I keep asking
my wife if a bit of plastic goes in the black bin or the blue
bin because I cannot remember the difference between the different
types of plastic. According to my local authority I would be breaking
the law if I put it in the wrong dustbin. Is there not a serious
issue of privacy here where one wonders whether anybody in local
authorities has thought about that, following Lord Rowlands' point?
Mr McNulty: I think there is and I think
there will continue to be—which is why I welcome the debate
rather than traduce it—a clash of particular policy outcomes.
Twenty or thirty years ago people said you were mad if you thought
that unless we do something rather starkly about the environment
the planet is going to perish.
Q947 Lord Peston: We do not want
to argue about that now.
Mr McNulty: It all goes to the same point;
that is precisely what I am saying. However small a contribution,
you putting the right rubbish in the right bins so that it can
all be duly recycled is all part of that process. That is not
to excuse a threatening paraphernalia around that if the public
officials are discharging their function, but I think the privacy—to
back to John Stuart Mill and your private circles—around
how you discharge your rubbish has gone back to a public realm
in terms of the utilisation of recycling that rubbish. It is a
very, very interesting debate, but it still does not excuse the
threatening or intimidatory nature of discharging those duties
by local councils. I would accept that point.
Q948 Viscount Bledisloe: You said
that the local government official ought to consider whether he
needs this information to do his job, but is there not another
question there? If I am the dog fouling officer I would need information
about dog fouling to do my job, but somebody might say, "Well,
maybe, but dog fouling is not that serious that we ought to be
spying on people to get it" and you cannot expect the dog
fouling officer to make that decision, can you?
Mr McNulty: No, and he would not. Under
our architecture a senior manager way above him would, not the
operative on the ground floor. I was going to say that I would
not poo-poo the notion—I apologise for the pun—but
if the one local park available to the community is festooned
with irresponsible dog owners who are just using it as an open
lavatory for their dogs then the impact of that on children and
others in the area can matter. I am not saying it matters in every
single circumstance however.
Q949 Viscount Bledisloe: There are
some offences that are not worth the invasion of privacy involved
in spying on them. Dog fouling may not be one of them.
Mr McNulty: It is a balance and it does
go to the broader point about proportionality, but in the example
I think there may be a reasonable and rational application of
the law. We are at the edge, I do accept that. Are there circumstances
in which I think it absolutely appropriate to utilise the powers
afforded to local government against littering? Probably intuitively
not, but there might be a broader context where it is absolutely
a plague in a particular area so it does go to context and proportionality
and the priorities of the local councils and the impact of the
misbehaviour on the local community. I would not necessarily trivialise
any application, but I do absolutely think—which is why
I will discuss it with the commissioner and Sir Simon—that
we need to re-define the edges.
Q950 Baroness O'Cathain: In what
ways, if any, do you think that the work of the surveillance commissioners
could be improved? Is there a case for requiring them to investigate
specific cases where it appears that RIPA powers are being used
unnecessarily or disproportionately?
Mr McNulty: It may be and I think the
fairest point is to say that the whole commissioner architecture
is relatively new and in this area we should keep it as flexible
and dynamic as possible to see where the interventions of powers
should be. It is certainly a question I will ask the Surveillance
Commissioner when I see him specifically about RIPA but I think
it is something that the Prime Minister is very keen on too. He
will ask the relevant commissioner to look in more detail at the
National CCTV Strategy and how that Strategy fits in with where
we are at. I would say at this stage, so long as we keep an open
mind and be flexible and not lock in a box the definition of what
the commissioners should or should not do and constantly go to
battle with them if they want to do any more, I think that would
be an irrelevant and not terribly helpful approach.
Q951 Baroness O'Cathain: That would
also be covered, of course, if you propose post-legislative scrutiny
and watch developments all the time because there might well be
technologies which we could not even dream of.
Mr McNulty: I think the Prime Minister
in his speech last week formerly asked I am not sure whether it
was the Surveillance Commissioner or the Information Commissioner
to do an annual report to Parliament to assist that broader post-legislative
scrutiny type approach. He did not promise this because he is
in awe of the business managers, as am I, but hopefully with a
detailed debate on it as well rather than just another document
lodged in the library.
Chairman: Lord Smith?
Lord Smith of Clifton: I think most of my questions
have been pre-empted by earlier debates so we should move on.
Q952 Lord Woolf: Moving to a different
area, the National Identity Scheme Delivery Plan suggests that
there will be the strongest possible oversight of the Scheme.
Can you clarify what will amount to the strongest possible oversight?
Mr McNulty: I think the commissioner
will have specific and broad responsibilities for overseeing the
work of the Scheme. The information commissioner will ensure that
there are high standards of data adhered to. We mean it when we
say that there should be the strongest oversight possible. Also
I think with increasingly a duty to focus on and resist data maximisation
and the notion very alive when I took the Bill through of function
creep. The oversight will be as broad as possible. We appreciate
it is a serious step.
Q953 Lord Woolf: Will the commissioner
have sufficient resources to carry out this function?
Mr McNulty: Yes, I believe so, and I
think crucially including the right to be consulted about changes,
not least changes in terms of function and data which of course
needs to be approved by both Houses in the first place but I think
it appropriate that the commissioner is consulted on that potential
change before each House is troubled by orders.
Q954 Lord Woolf: Of course there
will be also the Information Commissioner; how are they going
to define the boundaries of the responsibilities of each?
Mr McNulty: I think overwhelmingly the
Information Commissioner's role is in the context of the individual
data protection and that is very, very clear, whereas the Scheme
Commissioner's role will be about the proper oversight and integrity
of the Scheme itself and making sure it complies with legislation
and that any changes afforded are dealt with and discussed. He
will have a role specific to the Scheme whereas you will appreciate
the Information Commissioner's role is a far broader remit.
Q955 Lord Woolf: Who is going to
tell them those are their respective roles?
Mr McNulty: Hopefully they will already
know. The Information Commissioner certainly knows his role already
and I think in the legislation the Scheme Commissioner's role
is pretty well defined. It may well be one of those 74 areas yet
to be fully defined in one of the orders hanging off the Christmas
tree. It is some time since I did the ID Cards Bill so if that
is wrong I will get back to your Lordships.
Q956 Lord Woolf: It may well be that
it is best left to them to work it out in practice.
Mr McNulty: That may well be so. I know
that because their areas overlap so readily the Intelligence Service
and the surveillance commissioners do meet fairly regularly to
determine their boundaries. Quite how they relate more readily
to the overarching role around the individual data protection
of the Information Commissioner I think is a moot point.
Q957 Chairman: Can I turn to closed
circuit television? One of the recommendations of the National
CCTV Strategy of October 2007 was for a national body responsible
for the governance and the use of CCTV. Could you tell us a little
more about this initiative and whether you think there is scope
for statutory regulation in addition to better governance, codes
of practice and the Data Protection Act?
Mr McNulty: There may be in terms of
the second one. In terms of the first point, at the moment there
is a programme board looking at the establishment of that national
oversight. It contains a whole range of representatives from the
Association of Chief Police Officers, the Home Office, our non-departmental
public body, the National Policing Improvement Agency, the Local
Government Association, the Ministry of Justice, the Information
Commissioner's Office and a range of others across Government
looking to get in place that national oversight and the broad
development of CCTV. I think it is appropriate and that is why
we endorse the Strategy because like a lot of these issues CCTV
covers a relative multitude of sins. As I referred to earlier
when looking at the original concept of a surveillance society
you would be forgiven for thinking, given some of the coverage,
that every single camera was organised and there and manifestly
there only for the state which is not the case; some 80 per cent
plus on estimate are private. We think there is a reasonable relationship—whether
people know of it sufficiently or otherwise is again a moot point—between
the data protection legislation and an individual's rights vis-a"-vis
cameras, but that might be worth exploring in some more depth.
There is also a range of technological capability around many
of the cameras, most of those in the public space domain may well
retain images for up to a month; many, but not all, of the private
ones are at their most basic on a sort of 24 hour loop and are
constantly taping over the images recorded. I think it may well
be that this national body as it goes forward does look at the
relationship between individuals, public authorities and CCTV.
This area, above most, and the DNA database are areas where I
would traduce entirely the big brother image because it is a nonsense.
Q958 Chairman: What would you think,
Minister, of the suggestion that the Information Commissioner
or another similar person should have to approve major new CCTV
schemes or carry out retrospective inspections in the way the
surveillance commissioners examine the use of RIPA powers?
Mr McNulty: I am not sure how helpful
that would be unless we discern a difference between different
types of CCTV schemes. It may well be that new schemes put in
a town centre now, for example, will be wholly different from
one that has been there for ten or 15 years and can have considerably
more technological capabilities that may go to both better protection
and have potentially greater intrusion so that there might be
a case for doing that looking forward, but I am not entirely sure
what a retrospective view of even those public place and space
camera systems or indeed private would achieve because invariably
things have moved on so readily in terms of the technology, so
your benchmark for assessing the impact of something retrospectively
would be almost irrelevant.
Q959 Lord Peston: Going back to Lord
Woolf's question, it suddenly dawned on me that I am totally ignorant
now of where we are on the practical introduction of identity
cards. You mentioning the 74 branches of the Christmas tree worried
me. Would it be possible for your Department to give us a short
statement on the present state of play, where we are with identity
cards?
Mr McNulty: Of course; that is entirely
reasonable.
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