Motion to Take Note

Surveillance (Constitution Committee Report) – in the House of Lords at 10:00 am on 19th June 2009.

Alert me about debates like this

Moved By Lord Goodlad

That this House takes note of the Report of the Constitution Committee on Surveillance: Citizens and the State (2nd Report, HL Paper 18).

Photo of Lord Goodlad Lord Goodlad Conservative 10:06 am, 19th June 2009

My Lords, the report was published in February this year after a lengthy inquiry, which commenced during the chairmanship of your Lordships' committee by the late Lord Holme of Cheltenham. I speak on behalf of all members of the committee in paying tribute to the wisdom, assiduity and vivacity with which he chaired our proceedings. I also pay tribute to the work of the late Lord Bledisloe, who died recently; his scholarship, experience and attention to detail made an invaluable, and indeed memorable, contribution to all our proceedings.

I am grateful not only to members of the committee but to all those who gave evidence to us in this country, in Canada and in the United States of America. While the committee alone is responsible for its conclusions, those conclusions are based on the evidence submitted, and the witnesses played a crucial role in influencing them.

I thank our specialist advisers, Professor Charles Raab of Edinburgh University and Dr Ben Goold of Oxford University, and our legal adviser, Professor Andrew Le Sueur of London University. The contribution of the clerks has been beyond praise but their identities will remain, as always, shrouded in impenetrable mystery.

I am grateful to Jack Straw, the Lord Chancellor and Secretary of State for Justice, a regular witness before your Lordships' committee, for co-ordinating and presenting to Parliament the Government's response to the report, which was published on 13 May. Your Lordships' committee published an analysis of that response on 7 June this year, which recites our various points of appreciation and of disappointment, together with the reasons for both.

The issues addressed in the report affect every citizen in the land and its publication occasioned widespread—indeed, perhaps unprecedented—media coverage, both in this country and elsewhere. In the limited time available, it would perhaps be helpful for the purposes of debate if I referred to the issues covered by the Government's response, together with others to which Government and Parliament will return in the future, rather than dwelling in general and abstract terms on those considerations already rehearsed in the report about the future balance between privacy, security, necessity, proportionality and the relationship between individuals and the state. I shall touch briefly on the National DNA Database, closed circuit television, covert surveillance by local authorities, oversight of the powers of surveillance exercised under the Regulation of Investigatory Powers Act, the encryption of personal data held by the state and privacy impact assessments.

The committee made 44 recommendations. I shall, inevitably, mention but a few. We believe that the Regulation of Investigatory Powers Act 2000 should be amended to include judicial oversight of surveillance carried out by public authorities and that compensation should be paid to those who are found to have been subject to unlawful surveillance under the Act's powers. We recommend that the Government should consider whether local authorities are the appropriate bodies to exercise RIPA powers and that, if they so continue, there should be a definition of the circumstances in which the use of these powers is appropriate. As the Minister will be aware, there has been massive public concern about the use of the powers in relation to rubbish and residential qualifications for education purposes.

We recommend that the Data Protection Act 1998 should be amended to make it mandatory for government departments to publish a privacy impact assessment before adopting new data collection or processing schemes and that the Information Commissioner should scrutinise and approve those assessments.

We recommend, inter alia, that legislation should be introduced to replace the existing regulations governing the National DNA Database to reassess which DNA profiles are retained and for how long. We welcome the Government's decision now to reassess this matter, which is of immense public concern.

We recommend that the Government introduce a statutory regime for the use of closed circuit television and legally binding codes of practice for all CCTV schemes. We welcome the Government's acceptance of the need for, and recent commissioning of, an independent appraisal of the effectiveness of CCTV. It is of astronomical expense, paid for by the taxpayer. We heard evidence from the police that, since most violent crime is unpremeditated, it does not deter violent crime and that car crimes are committed round the corner where there is no CCTV. I hope that the Government may revisit their objection to our recommendation of a statutory regime for CCTV.

I hope, too, that the Government will reconsider their decision not to allow the Information Commissioner power to inspect private sector organisations without their consent. As public service functions increasingly involve transfers of personal data across organisations and sometimes across other unintended boundaries, there is a widening anomaly in the application of the Data Protection Act 1998, about which many people are deeply worried. Those private sector organisations that successfully resist the Information Commissioner's power to inspect may well be those with something quite serious to hide.

I hope that in his reply the Minister will be able to give your Lordships more details about how the Information Commissioner may be better empowered to monitor the effect of surveillance and data collection on Article 8 rights under the European Convention on Human Rights, which is an extremely sensitive and uncertain area.

We recommend that the Data Protection Act 1998 should be amended so as to make it mandatory for government departments to publish a privacy impact assessment before the adoption of any new data collection or processing scheme and that the Information Commissioner should scrutinise and approve privacy impact assessments, which are a relative novelty in our jurisdiction but not in others.

We welcome the Government's commitment to urge greater flexibility in the inspection work carried out by the Interception of Communications Commissioner and the Chief Surveillance Commissioner, as we recommended. Perhaps the Minister will wish to say a word about proposed future guidance to public authorities in this area and the future work of the Investigatory Powers Tribunal.

Realisation of the enormous increase in surveillance and data collection by the state and other organisations, and dissemination thereof, has now dawned on Parliament, on government, on the public and on those in the media who take an interest in these matters. It is seen by many people as a threat to our long-standing traditions, privacy and individual freedom. We have recommended that a parliamentary Joint Committee on the surveillance, data collection and distribution powers of the state should be established to scrutinise relevant legislation and practice. I think that that is an important recommendation in the light of terrorist threats and legislation that comes through without our really noticing it. I hope that the Government and Parliament may in due course come to share the view of your Lordships' committee.

A key recommendation—perhaps, in a sense, a text—for today's debate is contained in paragraph 144 of the report: namely, that privacy and the application of executive and legislative restraint to the use of surveillance and data collection powers are necessary conditions for the exercise of freedom and liberty, which has been won over many centuries, and that privacy and executive and legislative restraint should be taken into account at all times by the Executive, by government agencies and by public bodies, all of which—or nearly all—should be accountable to Parliament. That, in recent years, has self-evidently not been happening. I hope that today's debate may make some contribution to its doing so in the future. I beg to move.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 10:18 am, 19th June 2009

My Lords, the Constitution Committee, of which I am a member, under the wise chairmanship of the noble Lord, Lord Goodlad, has delivered a monumental report. Our parliamentary system can be proud of it. The security of the state has to be guarded, and within this, the freedom of the individual has to be enshrined. I will not go into the detail of our 44 recommendations or the Government's responses. Some are encouraging; some are frankly disappointing. In the name of the need to combat terrorism, the Home Office's actions do not give the appearance of a holistic approach. It is the piecemeal erosion of liberty that I fear, and it is ever vital to bear in mind proportionality as a test to any governmental response.

The knowledge of the world now about so many of our individual actions and lives is so totally different from how it was in the world in which we grew up, with a bringing together of so many strands of information about us already. How much more will be known in 10 or 20 years' time? Is it all necessary? Are sufficient safeguards in place, in the form of the detail of legislation, judicial oversight and oversight by the various commissioners? Have the commissioners the powers and the resources to be proactive?

Only recently, at the Hay-on-Wye festival, Sir Richard Dearlove, who led the Secret Intelligence ServiceMI6, so called—from 1999 to 2004, is reported as having attacked "the loss of liberties" caused by expanding surveillance powers and described some police operations as "mind boggling". He feared the striking and disturbing invasion of privacy by the Big Brother state. These are the reported comments of the man in charge of the intelligence service during the September 11 attacks. They are indeed disturbing, coming from such a source.

He highlighted the fact that Scotland Yard has carried out more than 150,000 stop-and-searches since 2007, compared with fewer than 300 in Manchester. They may all be necessary, but I would need considerable persuasion of their proportionality in all parts of the country. I do not know whether the attention of the police inspectorate has been drawn to the disparity. One has to be eternally vigilant. I had some responsibility in this field as a law officer, but is the fear of terrorism being used now disproportionately to defend some of the actions of the government and public organs?

Since Roman times, it has been asked, "Who is to guard the guardians?" How do we explain the need for our National DNA Database to be the largest in proportional terms in the world? I know as a former constituency Member how popular are CCTV cameras with those who are afraid, but can we justify being world leaders again, with an estimated 4 million CCTV cameras? Is this an effective use of the £500 million of public expenditure which has been involved? During the 1990s, approximately 78 per cent of the Home Office crime prevention budget was spent on installing CCTV. These methods of surveillance have grown on us with hardly a murmur, so I welcome the Government's support for a national body to oversee the use and deployment of CCTV.

The Regulation of Investigatory Powers Act, or RIPA, has been used in ways that were never intended, as an umbrella for all sorts of activities by public organs—it was mentioned by the noble Lord, Lord Goodlad. It was never envisaged—indeed, it was categorically denied by Home Office at the time—that it would apply to local authorities. Hence, local authorities were able to pursue all sorts of investigatory activities, from snooping into overfull dustbins to spying on the working of school catchment areas.

The string of Home Office junior Ministers who came before us were particularly unconvincing in defending the changed attitude of the Home Office. It was an about-turn. The appetite of some of the local authority witnesses, although I hope that they were not representative, for the use of these powers was simply gargantuan. One gave us as an illustration their usefulness in catching travellers who persuaded old ladies to part with large amounts of money to do minor roof repairs—a worthy cause, of course. But what have the police been doing over the years, using their own investigatory powers, with proper safeguards? In my professional experience, they seemed to have been properly activated by the police over many years. I just cannot see how the need in this field cannot be met by the police as it has been traditionally. I do not believe that local authorities are appropriate bodies to exercise RIPA powers. If they do so, the Government should define the circumstances, and the proper training and authorisation standards. The Government have moved in the right direction in their response. We shall follow closely the current consultation.

I have touched on but a few of the areas of our concern. I summarise our main responses to the situation that we now find ourselves in. First, we need oversight, particularly judicial and by our commissioners. Secondly, there should be new roles and resources for the various commissioners that we have in place, particularly in scrutinising and approving private impact assessments. Thirdly, I feel particularly strongly that a parliamentary Joint Committee, mentioned by the noble Lord, Lord Goodlad, on surveillance and data powers should be established to, among other things, supervise what Sir Richard Dearlove claimed were "inadequate laws to regulate some surveillance powers". The work of your Lordships' Constitution Committee in this field is broadly done. Someone else must carry the baton. I find the Government's response to this aspect of our report particularly disappointing.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench 10:27 am, 19th June 2009

My Lords, I congratulate the Constitution Committee on this report, which is timely and thorough. I read through the doorstep of evidence and congratulate the committee on listening to it all. Some of it is well informed; some of it is not informed at all.

I shall concentrate on surveillance for national security purposes, but touch on the other matters, such as local authorities where I share the views of the previous two speakers. In thinking about what I wanted to say today, I looked again at the European Convention on Human Rights. I had forgotten how it allows for interference with privacy in such a broad range of areas. I shall read them out to the House, if I may, to remind it:

"Everybody has a right to respect for his private and family life, his home and his correspondence ... There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law"—

I shall come back to that phrase—

"and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms and others".

That is pretty unrestrictive. I am not sure that I want my privacy invaded to protect my morals or anybody else's.

As I have said before in this House, I am concerned that the most intrusive powers of the state should be used only for the most serious crimes and threats in proportion. I hope that the House will forgive me if I sound a little didactic occasionally, because surveillance is used very sweepingly. I would define four main sorts of surveillance. In the most intrusive category, I would put, first, eavesdropping—the deployment and use of microphones in places where the individual or people whom they are targeted against would have a presumption of privacy—and, secondly, the interception of communications. The committee at one stage called this wire-tapping. No, no—that is an American phrase. In the UK we talk about very low-key interception of communications. Those two are the most intrusive techniques, and when I joined the Security Service in 1974 they were done without any legal basis. There was ministerial authority but no legal basis.

In 1985, roughly 30 years after the European convention, we got the Interception of Communications Act, which was welcome and which concentrated on those two surveillance techniques. When I joined in 1974, I was astonished—naively—that the state bugged people. It was not public knowledge then. I was rather shocked that we were listening to telephones and opening mail; this did not seem to be decent behaviour. However, what reassured me and kept me in the service was the degree of scrutiny, care and toughness with which those resources were applied for and deployed. In particular, from a very early age I was taught that they were to be deployed only if other methods of investigation were not available or had proved fruitless, and if the threat and necessity were sufficiently serious and high to warrant that intrusion.

I go back to my point on being in accordance with the law. After the fall of the Eastern bloc, when my service and SIS went to places such as Hungary, Poland and Czechoslovakia to advise them on creating democratically accountable security and intelligence organisations in a democracy, we told them all that they needed a proper legal base. They needed a proper law to cover what they were going to do. When it was clear that the Government were going to introduce the Human Rights Act in 2000, we realised, as others did, that it would affect two other major techniques. One was what RIPA called "direct surveillance", which means following people and observing them—walking and moving around behind them, seeing what they do from static or mobile surveillance. The other was the recruitment and deployment of covert human intelligence sources to collect information on them. We realised that those two techniques, which I would suggest are less intrusive than the first two, were not specifically authorised in law. I am proud that in the security service we argued very strongly that we needed a legislative base for those techniques—and, I might say, in the face of some opposition—in what then became RIPA.

Perhaps the House will forgive me for repeating that. Just to talk about surveillance broadly can confuse. There are various levels of intrusion and, I would argue, various levels of authorisation may be appropriate for them. Unlike some of the police witnesses, I believe that RIPA has worked well. It has not worked well on angles such as local authority; it has been interpreted too broadly in my view, but I do not believe that the bureaucracy that was criticised by some witnesses to your Lordships' committee is too much. It is right that for these intrusive powers there should be very close scrutiny, that internal processes need to be robust and challenging and that the external scrutiny—currently by Ministers—for the most intrusive methods needs to be thorough and conscientiously done. An audit trail is essential, not least for post hoc scrutiny and for public confidence.

I would caution against having higher levels of authority for the lower levels of surveillance. I would regard, for example, that having court approval or prior judicial approval to follow someone would be unwieldy and unworkable, given the imperatives of speed and flexibility in fast-moving operations. I would not be surprised if, at some stage, judicial authorisation replaced ministerial authorisation, but that should be only for the most intrusive techniques and not for the low-level ones, otherwise the whole system will grind to a halt.

There are two of the committee's recommendations that I wish to argue against. Paragraph 474 argues for "sufficient detail and specificity" in surveillance techniques. That can be interpreted in different ways, but it would be mad to alert those who threaten us seriously to the emerging capabilities of the state to be deployed in the most serious and high-level threats. The history of intelligence is like an arms race—a series of advantages for the state that are eroded as people become aware of those capabilities and the state has to move fast to keep ahead of them. For example, techniques to do with mobile telephony that we use today were unknown to the public 10 years ago, which gave a tremendous advantage in investigating terrorist crime. If we reveal those capabilities in too great a detail, they will cease to produce intelligence. I do not exaggerate—I am not one for hyperbole—but people will die as a result.

The other problem that I have in regard to national security, referred to in paragraph 477, is the suggestion that those subjected to surveillance should be told after the event, subject to the caveat that,

"no investigation might be prejudiced as a result".

That would rule out the suggestion in most cases. The source of the information that triggered the investigation; the other individuals involved; the possible need for surveillance in future; the Article 1 rights of any covert human intelligence source involved who produced the information; the protection of foreign intelligence under the third country rule, which we will cease to get if we do not protect it—all those make that a difficult recommendation.

Finally, I believe that the public well understand and support the need for intrusive techniques where the threat demands it. When my former service approaches a member of the public to ask to sit in their bedroom for a week—or maybe three months—to watch somebody, when I would say, "Oh please not", they say, "Yes". If it is serious and important, the public support us in conducting those operations. But what they and I, and other Members of the House, are queasy about is the spread of these technologies and approaches and the retention of data for things that fall outside the narrow category of very serious threats that I am describing. I was glad to see that the committee included private activities in that; it is right that its recommendations covering those are also taken seriously.

It is entirely right that we should consider these things. The days when national security, as an issue, was very much hidden away and not discussed are over, and rightly so—but we must be careful in what we describe here and what the consequences will be if we do not narrowly interpret in the way I have suggested.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 10:38 am, 19th June 2009

My Lords, being a member of the Select Committee on the Constitution was the high point of my many years in your Lordships' House, and the document, Surveillance: Citizens and the State, was the high point of my time on the committee. It is customary to pay tribute to the chairman of the committee but, in this case, whether it was customary or not, I would pay fulsome tribute to the excellent, patient professionalism of my noble friend Lord Goodlad and to all members of the committee. The team work was excellent and the dedication was most marked, and I am sure that the report will stand for a long time as an example of how such work should be done. On every issue, there was a lot of humour alongside some very earnest discussion and debate. We had our sadnesses, too, as our chairman has already said, but this report is a lasting memorial to the fine work of those who have departed. It certainly was a great experience to be a member of the committee.

There were occasions when we thought that we were, as the current in-phrase states, "ahead of the curve", and others when we were running very hard to keep ahead of latest developments. It was difficult to agree a cut-off period but eventually we had to draw stumps. That is an indication that the issue will continue to hold our attention—and that it needs to continue to hold our attention, not only for the reasons that we give in our report but for the reasons given today by the noble Baroness, Lady Manningham-Buller, and all that she has revealed.

The headline-grabbing issues following the publication of the committee's report were always likely to major on the question of DNA databases, the proliferation of CCTV cameras and the effects of RIPA on what we believe is our right to privacy in every sphere of our lives. I am not convinced that our views on the issue of DNA databases are mirrored by the public at large—not that that should constrain a Select Committee from putting forward its views and presenting conclusions that are at odds with a lot of what one might call "conventional wisdom".

DNA databases are a big topic of conversation, discussion and debate way outside the Westminster village. Their undoubted usefulness in solving crime, in identifying people who have been suddenly killed or injured and in dealing with sad cases of amnesia or dementia are all so positive; but of course there is also the persistent, and correct, emphasis on the right of privacy for everyone. The committee concluded in paragraph 200 that a universal DNA database would,

"be more logical than the current arrangements", but thought that it would be undesirable,

"both in principle on the grounds of civil liberties, and in practice on the grounds of cost".

Having left the committee—time-expired, I hasten to add—I have thought long and hard, and I feel that a universal DNA database would be so much better than the current situation, which, as described in the report, does have some serious flaws. The conclusions of the report are well stated and well founded, but surely if many years ago we had knowledge of the amazing usefulness of DNA data, we would by now have a universal DNA database.

I fear that my view is mirrored by an ever growing number of people, and not just among the chattering classes nor in the newspaper-generated campaigns. A great deal of serious discussion and debate is devoted to the subject and I hope that minds might be changed. Of course the privacy issue is important—it is fundamental—but there must be a case for agreeing that if everybody's DNA is on the database, that issue will lose its potency.

As well as the undoubted cost issue, we would have to be absolutely convinced that the systems were failsafe and that the data were encrypted to such an extent that they were secure. Recent experience makes all of us worry about this—actually, it probably terrifies us—but we cannot stop advances in technology and must be prepared to consider likely long-term benefits against convictions held as a result of short-term experience.

Of course the government response is ad idem with the committee's recommendation, and I accept that. I just wanted to use this opportunity to put a marker up and say: let us not ensure that this view is fixed in concrete for ever.

I turn now to the issue of CCTV surveillance. The proliferation of CCTV cameras and the oft-quoted statistic that there are more CCTV cameras in this country than in the whole of the rest of Europe engender dozens of differing views—not least among the population at large. At a dinner party last Saturday the subject came up. The hostess, who happens to be a chairman of the magistrates in our nearest city, almost went crazy at the very suggestion that there should perhaps be a reduction in the number of CCTV cameras. She said, "They are the most valuable tool we have in nailing crime. They must be a deterrent because of the number of criminals who are convicted as a direct result of the evidence from CCTV cameras", and so on. One of the other guests was equally exercised about the subject. She bewailed, "I hate the things. Whenever I catch sight of myself on them I realise just how old and fat I am". In her case, neither statement is true. What is true is that the cameras do have a propensity to show up bad posture and remind one that a hair appointment is long overdue.

I find the ubiquitous presence of CCTV cameras most comforting, and certainly not a threat to privacy. It is much more a security-enhancing issue, though I concede that this reaction is likely to be both gender- and age-related. The committee's recommendation states:

"We recommend that the Home Office commission an independent appraisal of the existing research evidence on the effectiveness of CCTV in preventing, detecting and investigating crime".

That was answered by the government response to the effect that they have already commissioned an independent appraisal of the evidence about the effectiveness of CCTV in preventing, detecting and investigating crime. When is this review likely to be completed? I think that we would all like to see it.

I also support the committee's response to that information which urges the Government to ensure that the review is made available more widely so that it can inform a genuine debate on the subject—not just a dinner party argument.

The impact of RIPA on the citizens' privacy was a topic of much discussion and debate, and has already been alluded to. A lot of it was fairly torrid stuff. Whereas the mushrooming number of CCTV cameras is visible, the covert activities of public authorities in using surveillance to further their own aims could be, and has been, unacceptable, as the noble and learned Lord, Lord Morris, said. Sadly, in many cases the suspicion is created that public authority employees have been overzealous in using covert methods to obtain evidence of malpractices that are not exactly of a life-threatening nature. The committee recommended that the,

"Government consultation on proposed changes to the Regulation of Investigatory Powers Act 2000 should consider whether local authorities, rather than the police, are the appropriate bodies to exercise such powers. If it is concluded that they are the appropriate bodies, we believe that such powers should only be available for the investigation of serious criminal offences which would attract a custodial sentence of at least two years".

I am afraid that the government response is just not good enough. They rely on a code of practice. This is not the first occasion—and, sadly, it will almost certainly not be the last—when I feel obliged to pour scorn in great measure on codes of practice. When will we all, and not just the Government, accept that codes of practice are only as effective as the level of integrity of those who are in a position to administer them? It has been for ever thus. Yes, I know that in many cases codes of practice are worth while and effective, but in many more cases they are regarded in somewhat the same light as hurdles which human ingenuity feels compelled to avoid by racing round them, or, even worse, as a challenge to demolish them, often in a blatant way.

We have just to cast our minds back about a year to see that codes of practice in the banking and financial sector generally did not stand up. Codes of practice need teeth. Too often they may have teeth, but the teeth are not in great condition and many of them fall out. The government response states that there will be consultation. My cynicism regarding codes of practice is almost identical to my cynicism about the promise of government consultation as the panacea for all. The noble Baroness, Lady Manningham-Buller, spoke about different levels of authorisation, which obviously has merit—and almost certainly much more merit than codes of practice.

The work undertaken on this report was long and arduous but it was wonderfully interesting, so much so that Wednesday mornings took on a marvellous sense of exuberance for those of us involved. It was sad that it had to come to an end. The issue has of course not come to an end, and nor will it, ever bearing in mind the innate conflict between privacy and security. However, the report will be a most useful reference document for many years to come. I hope it is widely read. It was just marvellous to be part of the project.

Photo of Lord Peston Lord Peston Labour 10:50 am, 19th June 2009

My Lords, I join others in congratulating our chairman on his chairmanship of the report. The noble Baroness, Lady O'Cathain, put it all absolutely admirably, except that I would go further—I find it miraculous that we have produced an agreed report. That is entirely down to our chairman. I also echo her remarks that, since the whole subject of the Constitution Committee is a million miles from my interests, I found—and still find—our Wednesday morning meetings absolutely fascinating. I really look forward to them.

To place this in context, I shall start by referring to two of the greatest thinkers of our country. Adam Smith saw it as the first task of government to protect the people of the country from an outside threat, and its second task to protect them from a threat from inside. He saw that as central to the role of government. Nearly as great a thinker was John Stuart Mill, 100 years later, who emphasised above all the role of privacy when he said that,

"there is a circle around every individual human being which no government, be it that of one, of a few, or of the many, ought to be permitted to overstep".

He said that the point to be determined is where the limits should be placed. Bearing both those ideas in mind, all Governments face the same quandary. If there is a terrorist outrage, they will always be blamed for not being tough enough. Equally, when an ordinary citizen is stopped by the police from going about their everyday business, they feel that they are being threatened and their fundamental liberties impaired—but, yet again, they blame the Government. In a sense, the Government cannot win either way.

What troubles me a little is that since the national impact of a terrorist attack is of an altogether larger order of magnitude, it is not surprising that Governments give it the greater priority. What worries me is that, instead of a rational analysis of the balance of advantage between the threat of the terrorist and the impairment of personal liberty, what appears to happen is that those who shout the loudest get their own way.

Having said that, I turn to the question of CCTV, which we deal with in chapter 3 of the report. I am currently totally at a loss as to what has happened to this independent inquiry. I thought that it had been published, but I am not sure whether it has or not. Perhaps we could be told. I am told that it has not been printed, but I gather that it may be available in some other form. There are certain fundamental questions that must be answered in connection with it. I am not at all clear that any of them are being dealt with by the independent inquiry. The first is the obvious one of whether CCTV is effective. The second is, even if it is effective, does it justify its cost? In connection with that, there is the standard economic question: are there not better ways of spending the money to improve security? The obvious one, which we heard in evidence, was better street lighting.

I ask my noble friend the Minister the question that others have raised: is it true that we have more CCTV cameras than the whole of the rest of Europe? Is it true that we have far more per capita than the USA? I gave him notice of these questions, so he may know the answer now. I look forward to it if he does.

Deputy Chief Constable Graeme Gerrard of the Cheshire constabulary put the point very well. In evidence, he said to us:

"In terms of reducing crime there are mixed results ... there was some quite good indication that it reduces the public's fear of crime. If you look at where most of the pressure is for CCTV in the community, the vast majority of it comes from the public who actually want it ... It is certainly not being driven by the Police Service".

That leads us to this question: if the public want these CCTV cameras—and my ad hoc experience is that that is true—what is the correct response that those of us in public life, not least the Government, should give? Should we say, "If it is what they want, then it is what they ought to have even thought it is not backed by any evidence at all"? Or is it our duty to educate them and tell them that they are wrong?

This does not apply just to the present Government. I keep using the word "Government", but I do not necessarily mean just the present Government. Governments seem to be afraid of telling the public, "We hear what you are saying, and you are mistaken". No one seems willing to do that at all, in any field. Well, as someone who has devoted his life to a mission to explain, I certainly believe that if all CCTV cameras do is reassure you when you should not regard them as doing so, then someone ought to say to you, "Why don't you think about it a little bit and realise that you are mistaken?". However, I know that I am totally out of step with all sorts of people on that— including, as the noble Baroness, Lady O'Cathain, points out, magistrates who ought to know better.

Briefly, on the privacy impact assessment, I have to say to the Minister that the Government seem to be slightly casual in their response. They said:

"Departments are encouraged to consider undertaking a privacy impact assessment".

That does not seem to be strong support for privacy impact assessments, or to offer any confidence in the notion that they will occur. I would have thought that, for once, the Government might say to all the relevant bodies, "You will do them, and you will publish them".

I conclude with a question which was, in a sense, always with us in the committee. Are we sleepwalking into the surveillance society? There will be a range of opinions and reasonable answers to that question, from those who would say "possibly", to those at the other end who would say "certainly". I am really at the extreme. We are already in the surveillance society. I very much hope that it is not irreversible.

Photo of Lord Pannick Lord Pannick Crossbench 10:58 am, 19th June 2009

My Lords, I joined your Lordships' Constitution Committee after the work had been done on this report, and therefore feel no inhibition whatsoever in agreeing what a valuable and powerful report it is, under the wise chairmanship of the noble Lord, Lord Goodlad. For the committee to produce a report that has attracted praise from across the range of opinion, uniting the organisation Liberty and the Daily Mail newspaper in a most unusual alliance, is a reflection of the quality of the work, the importance of the issues discussed and the urgent need for greater controls on state power.

The topic to which I wish to draw particular attention today is that addressed in paragraphs 197 and 464 of the report. The report there recommends that the Government should,

"comply fully, and as soon as possible, with the judgment of the European Court of Human Rights in the case of S. and Marper v. the United Kingdom", delivered on 4 December last year on the subject of the DNA database. That judgment held that this country is in breach of Article 8 of the European Convention on Human Rights because DNA profiles of persons arrested for, or charged with, a criminal offence but not subsequently convicted, are retained on the national DNA database for an unlimited period.

The Government, to their credit, have accepted the judgment unreservedly and have announced that they will change the law to ensure compliance. The question of what should happen now arises in the context of your Lordships' committee's recommendation—with which the Government agree—namely, that this country should not adopt a universal DNA database for reasons of principle, given the privacy concerns, and for the practical reasons of cost and guaranteeing the security of the information. The issue therefore arises of the circumstances in which the DNA of persons arrested but not convicted of a criminal offence should be retained. In relation to this important matter the Government are, of course, correct to point out at page 8 of their response to the report of your Lordships' committee that this is a context, like so many others under the convention, in which it is necessary to strike a balance between the rights of the individual and the need to protect the public. However, that balance must be struck with due regard to the point made at paragraph 196 of the committee's report that DNA profiles provide the state with large amounts of highly sensitive information about the individual—information,

"that could, in the future, be used for malign purposes".

The European Court made the same point in concluding that the retention of DNA samples is a prima facie breach of the right to private life. Therefore, the Government need to justify very carefully the proposals set out in their consultation paper on how this country is to move forward in the light of the Marper judgment. I invite your Lordships' consideration of three matters. First, I am puzzled about why the Government think that it is appropriate to retain for up to six years—this is now their proposal—the DNA profiles of adults who were arrested for, but not convicted of, an offence which was not serious, violent or terrorist related.

In Scotland, as the European Court explained, there is no power to retain DNA material when a person is arrested but not convicted unless the alleged offence is serious. Can the Minister please explain to the House whether there is any evidence to suggest that the practice in Scotland has caused any detriment to the fight against serious crime in that country? We are talking about people who have no criminal convictions. Whatever the position in relation to those arrested for, but not convicted of, serious offences, the Government surely need the strongest justification for retaining the DNA profiles of adults who have no criminal record and who were arrested for a non-serious offence.

Paragraph 6.5 of the Government's consultation paper suggests that an earlier arrest for an alleged drugs offence—even if there is no conviction—may be linked to later offences of murder. If that is so, surely the proper response for the Government is to provide that an arrest for a drugs offence, even if there is no subsequent conviction, should mean that DNA samples may be retained for six years, rather than for them to propose that all DNA profiles may be retained for six years in relation to any case where a person is arrested but not convicted of a non-serious offence.

Secondly, the Government also propose that there should be a 12-year period for retention of the DNA profiles of those arrested but not convicted in relation to serious, violent or terrorist offences. Again, this is much longer that the three-year period, plus a possible two-year extension if a sheriff consents, which applies in Scotland, as noted in the European Court judgment. The evidence presented in the consultation paper to justify a 12-year period is to my mind very weak. Can the Minister help the House on whether there is any evidence at all to suggest that this three-year period, plus the possible two-year extension in Scotland, has in practice caused any detriment whatever to the fight against serious crime in Scotland? Has any senior police officer in Scotland so suggested?

The third and final point is that the consultation paper sensibly suggests that in exceptional circumstances the DNA profile that is retained should be destroyed before the expiry either of the six-year period or of the 12-year period if an application is made to that effect to an appropriate body. The Government propose that the application should be made to a chief constable. It is in my view very unsatisfactory indeed, given the important personal interests involved, that whether there are discretionary grounds for deletion of the DNA profile should be decided by a non-judicial body, the chief constable, subject only to judicial review. Will the Minister please consider recognising a right of appeal to an independent judicial body which would have power to require the deletion of the DNA profile?

If I have been arrested but not convicted, and I object to my DNA profile being retained by the state, giving it access to personal and intimate information, and I think I have a strong argument that the arrest was unjustified—for example, because of mistaken identity—surely I should have the opportunity to ask an independent court or tribunal to decide whether my DNA profile should be retained for the six or 12-year period, or whether I should be treated in this respect like any other person who has no criminal convictions.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 11:10 am, 19th June 2009

My Lords, I am most grateful to your Lordships for this opportunity to pay tribute in the context of this debate to the passing of a truly great man, Lord Dahrendorf of Clare Market. It is for others to assess the contribution that he made to political and social theory, international relations and education in the 20th and 21st centuries; all I will say is that it is clearly a very considerable contribution.

The celebration in honour of Lord Dahrendorf's 80th birthday in May, held in St Antony's College, Oxford, where he was for several years the greatly respected warden, was the occasion for a gathering of the significant thinkers of our time. It was a magical two days where the theme of liberty or the lack of it was examined in great detail. What has been apparent for many decades was again abundantly in evidence—that individual liberty was the single passion that informed Lord Dahrendorf's life. It is the theme of the majority of his 55 books, the core of his life's work and the reason why he, together with his father, was imprisoned by the Nazis in pre-war Germany.

But Lord Dahrendorf—Ralf—was also my hero, and he was my friend. He and his then wife, Lady Ellen Dahrendorf, together extended and went beyond the call of friendship some years ago when I was in need of their generosity. I regularly stayed with them in their farmhouse in the Black Forest, and there I got to know the man rather than the somewhat remote international figure he had by that time become. If you had not seen Lord Dahrendorf wearing a green felt trilby and conducting the local brass band in a bierkeller, you did not really know the man at all. I think that he is the first person to have been a Minister in Germany, as a member of the Free Democratic Party, and a Member of this legislature. His decision to take up citizenship in this country was due in large part to his love of and admiration for the British brand of liberty. He was pre-eminently a European. He loved good food and the best champagne; he was a swimmer and a jazz enthusiast. He was funny, endlessly courteous, extremely generous and perhaps the most profound thinker of the late 20th century.

In the past few years, as a Member of the same House, I had become even closer to him and his family. I shall miss him greatly, and know that his huge influence will continue to cast its light widely, long into the future.

Photo of The Earl of Erroll The Earl of Erroll Crossbench 11:13 am, 19th June 2009

My Lords, I shall speak briefly in the gap to make a couple of points on the importance of privacy. I should have put myself down to speak but forgot to do so; I am sorry.

I spend a lot of time discussing and speaking on these issues in the world of ICT, so I am quite familiar with them. It worries me that the acquisition, accumulation and analysis of the mass of surveillance material alters the relationship of trust between the citizen and the state. On the one hand we have privacy, and on the other identification. With the best of intentions in what Orwell accurately called our system of democratic socialism, the state tries to help people, protect them from other people, or catch—I give the example referred to earlier—rogue traders to help the trading standards people do good things.

But is this proposed accumulation of stuff effective? If you want to find a needle in a haystack, do not build a bigger haystack—storing a lot of stuff may just tie investigators in knots. Also, it is easy to mislead machines and lay false trails. For instance, I accidentally left my mobile behind today, so I will not appear to have been in the House. Lastly, a lot of the data are not correct or do not cross-reference correctly, so you can draw wrong inferences from the material.

We must use human intelligence, properly targeted and properly controlled. The control issues that the noble Baroness, Lady Manningham-Buller, mentioned are extremely important. We recreate what I call our digital footprint very rapidly, through our record of travel, use of credit cards, telephone calls, the tracking of the IMEI number of your mobile phone as you wander around, and the purchases you make. People do not realise that it does not take long to build up a picture of someone's life. Even if you start from scratch, with proper surveillance intelligence and interception you can build up a picture of whether someone is a criminal very rapidly, much quicker than you think. Therefore, I do not think you need a huge tail of stuff behind someone.

I always worry about the people who will look at the material. I remember that the definition of a puritan is someone who has a haunting fear that someone, somewhere, is enjoying themselves. We have all done something silly at some time—at a stag party, a hen party or somewhere—and told little white lies, and I always feel that we all have a right to rehabilitation and should be allowed to forget some of those past embarrassments. They should not be available to create a risk of blackmail in the future. If something is stored, there is a good probability that it will eventually leak. That is the danger, however good your security is.

I congratulate the committee on an excellent report.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 11:16 am, 19th June 2009

My Lords, it is customary to say that reports are powerful but this report is the most powerful that, in the 11 years that I have been in this House, I have seen from any committee in either House. Its power comes from the fact that it delves into the heart of the principle of what freedom means in the 21st century. In recent years, the ability to gather and store data on people has developed to beyond anything our legislation was designed to cope with, even legislation that passed into statute as little as 10 years ago. The committee was composed of individuals with a deep understanding of what the constitution is meant to protect. Therefore, it has produced a thoughtful report and one with many practical suggestions. I associate these Benches with the tributes paid to Lord Holme of Cheltenham, whom we of course greatly miss, and with the moving tributes to Lord Dahrendorf and Lord Bledisloe. The House will miss them all greatly.

The committee states in its report:

"We regard a commitment to the freedom of the individual as paramount. It is a precondition of the functioning of our existing constitutional framework".

That concept is incredibly important in the debate that the committee goes on to address—that freedom means two things: freedom from interference in our private lives, and the freedom provided by security so that we can go about our lives safely. I also found the evidence volume extremely interesting. One example of it is page 183, where Professor Bert-Jaap Koops from the Tilburg University Institute for Law gives an overview of the approaches to the right to anonymity in France, Germany, the US and Canada. It is important that the committee took that much wider view because, in a world where people and data travel so much, it is impossible to confine our view to the purely domestic. ID theft can and does happen on a global scale, and international events of course produce domestic legislation. There is no more powerful example than 9/11 in the US producing the domestic legislation that we passed in haste but now rubber-stamp each year.

The committee identified that public acceptance of a much increased level of surveillance had clearly resulted from the terrorism threat, but we on these Benches are astonished that the Government are so dismissive of the recommendations in paragraphs 486 to 488 that they should engage the public properly in a debate about the balance between the risks and benefits of surveillance, data collection and data sharing. They just pass the buck to the Information Commissioner's Office. Richard Thomas in his time in that office has done a fantastic job at raising public awareness of these issues and no doubt his successor will continue this work. However, leaving the whole task to the ICO would only be appropriate at all if the ICO were resourced at a level that enabled it to do the work on the scale that the committee is recommending—although I am not sure that it would be appropriate even then. Can the Government say by how much they are intending to increase resources to the ICO's office?

While on the subject of the Information Commissioner, I remind the Minister that it was only after opposition in your Lordships' House, which voted for my amendment in the Criminal Justice and Immigration Bill in 2008 to strengthen the Information Commissioner's powers, that the Government conceded that that was necessary. They have still not produced the regulations to do that, as the committee points out in its report in paragraph 243. The same powers need to be applicable to the private sector, with which the public sector is utterly intertwined anyway. These Benches will pursue that at every opportunity.

This report is not the first to warn that the Government's enthusiasm for data sharing has given the impression that they view the practice as an "unconditional good". The Thomas-Walport review warned of that in 2008. The Government have had some time to pay attention to the risks that that report underlined and to prepare themselves better for a response to this report.

The report mentions an interesting new term, "dataveillance"—amassing personal data, data sharing, data mining, profiling and data matching, as well as more obvious forms of surveillance, such as CCTV, which pose a very different level of threat to freedoms.

I am grateful that the noble Lord, Lord Pannick, has saved me some time, because he has examined deeply the question of DNA retention. In our debates on the Policing and Crime Bill we will have a further opportunity to debate that issue, and we will take the opportunity to challenge the Government's attitude.

The report outlines many concerns that too much data are collected. In other cases, too many people have access to those data. The technology is leaping ahead of political oversight. In paragraph 12 on page 438 of the evidence, there is an interesting comment about the police national computer, which is subject to "collaborative working", whereby people who might like to access it, but strictly speaking should not, can in fact get the information they need very easily. The evidence points out that vehicle and handheld terminals make confidentiality much more difficult to assess and control. That is the technological challenge.

Many of your Lordships have mentioned the application of the Regulation of Investigatory Powers Act. The fitness for purpose of that Act covers everything from life-and-death issues to the everyday. On death—we are debating this in the Coroners and Justice Bill—the Government maintain that there is a need to guard methods of gathering intercept evidence and that the evidence must lead sometimes to closed inquiries substituting for inquests—even though we are apparently the only country in the world to find intercept evidence inadmissible. However, I accept that there is more debate to be had on this. I was very interested in the contribution of the noble Baroness, Lady Manningham-Buller, on this subject. We urgently need the implementation of the proposals in the Chilcot review, which, according to the information that the Government recently sent round, is still at the stage of a design model—yet we are passing legislation all the time that depends on the outcome of that review.

On a more everyday level, there is concern about the interception of communications for commercial gain. There was an illegally trialled interception of web traffic when BT and Phorm decided to intercept users' web traffic to produce a targeted advertising system. The Government's response to that was very weak. I have mentioned previously in this House that the Home Office's lack of interest in that illegality was ill-advised and led to speculation as to whether it was due to its own wish to use such technology that it regarded such an illegal trial so lightly.

When RIPA became law nine years ago, such technologies were beyond the scope of legislators in making decisions on whether the Act was up to the job. Now its enforcement is something that the Government need to address. If the legislation is lacking in any way they must bring forward suggestions to improve it. The report considers two types of surveillance, as other noble Lords have said. They have mentioned all the issues around the use of RIPA by local authorities. The report's recommendations on that are very important.

The report also highlights the fact that authorisation is available to too many bodies, that RIPA allows surveillance authorities to authorise their own activities without judicial oversight—that is a particularly important gap—and that there is a division of responsibility for surveillance between different commissioners. That was interesting to read and there was a variety of opinion as to whether those activities were satisfactory or unsatisfactory. There was clearly a difference of opinion as to whether or not the system was unduly bureaucratic.

RIPA was passed in 2000. I remind your Lordships that local authorities were not at that time included in the list of public authorities that could have access to communications data. That provision was introduced in secondary legislation in 2003. That highlights the danger of secondary legislation and how very careful we must be when granting the Government powers under something as critical as RIPA. The orders can result in infringements such as those mentioned by noble Lords this morning.

We found that the Government's overall response to the criticisms of RIPA were very weak. I am looking forward to the Minister's defence. In other European countries, such as Germany, there is a constitutional commitment to the principle of proportionality which governs all data and surveillance rules. I should be interested in the Minister's comments on the proportionality issue.

The report proposes some immensely important actions on Article 8 compliance, on judicial oversight of surveillance, on identification systems, and on areas for new legislation. The report has effectively drawn up a work programme for the joint committee that it proposes, whereby, as legislators and scrutinisers, we would have a far better grip on this whole area. The key recommendations are in paragraphs 493 and 494. The Government may not, as their response states, be,

"persuaded that the creation of a new joint committee is the most effective way to ensure effective scrutiny".

I ask the Minister: do the Government prefer the disjointed approach because it leaves far less room for informed challenge? That is what they are saying—if they do not want a joint committee, they prefer a disjointed approach, with responsibility and oversight spread between different departments and Select Committees. However, the report highlights that the link between the citizen and surveillance is the basic functioning of our constitution. If the Government are serious about constitutional reform, they must accept that the proposal to establish a new joint committee on surveillance is essential.

Photo of Lord Henley Lord Henley Shadow Minister, Justice 11:29 am, 19th June 2009

My Lords, I start by offering my congratulations to my noble friend Lord Goodlad and his committee on producing this excellent and weighty report with its 44 recommendations to the Government. I take it that, when the noble Lord comes to reply, he will not try to respond to all 44 of the recommendations—the Government have done that—as I think that he will have quite enough to do in responding to the various points that have been put to him this morning.

I also congratulate my noble friend on attracting such an excellent list of speakers to his debate. It includes current members of the committee such as the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Peston, new members such as the noble Lord, Lord Pannick, and former members such as my noble friend Lady O'Cathain, who described herself as "time-expired". My noble friend might describe herself as time-expired; I would never dare to do that and I do not think that many other members of the committee would dare to describe her as such. I am sure that in due course she will have an opportunity to go back on to this committee or other committees, as appropriate.

I also congratulate my noble friend on attracting the noble Baroness, Lady Manningham-Buller, to this debate. She brought her expertise to it and reminded us that not only was there Volume I of the report, which I have read, but the even weightier volume of evidence, which she seems to have studied in great detail. I confess that I have not yet done that, but I have a long journey ahead of me and no doubt I can look at it in due course.

The noble and learned Lord, Lord Morris of Aberavon, summed up the Government's response to the Select Committee's report when he said that some of it was encouraging but that some was, frankly, disappointing. That theme seemed to crop up again and again in speeches from noble Lords during the debate. Therefore, we certainly look forward to what the noble Lord has to say when he replies.

At this stage, I make one brief comment on that response. As I understand it, the committee's report came out on 6 February and the Government produced their response, within almost three months, on 13 May. Therefore, I thought that on this occasion the Government had been reasonably speedy—something that the Ministry of Justice and other departments certainly do not always manage, a point on which I think that we will comment again later when we discuss the consultation on the European Court of Human Rights case, S and Marper, which the noble Lord, Lord Pannick, mentioned.

I think that I can sum up the view of my party very briefly by quoting what my noble friend Lady Neville-Jones said in a debate in April on the regulation, collection and retention of personal data. She said that we all,

"understand the argument that the collection and retention of personal data are necessary for the efficient running of public services, and to aid our security services and the police in the fight against terrorism and serious organised crime. However, as has also been said, unchecked this justification is leading to an exponential increase in the amount of personal information that is collected, retained and accessed by all manner of different bodies".—[Hansard, 2/4/09; col. 1190.]

That briefly sets out our position and stresses the need for both balance and proportionality, a point stressed by my noble friend Lord Goodlad and again by the noble Lord, Lord Peston. The noble Lord cited both Adam Smith and John Stuart Mill, who seemed to be a slightly lesser man but almost as great. Even so, the noble Lord saw that one had to take the view of one in terms of the protection of the individual and the protection of the state and of the other in terms of the need to protect our privacy.

Having set out our views, perhaps I may deal with one or two points raised during the debate. The first concerns the whole question of data sharing and use. We welcome the Government's decision to drop Clause 152, which I think was its last numbering, from the Coroners and Justice Bill. Not only will that save a degree of time as that lengthy Bill travels through this House, but leaving the clause in would have had a truly a dramatic impact. It would have allowed Ministers to make an information-sharing order, meaning that a whole range of public servants would have had access to the public's personal data. Data would have been able to be shared by officials across Whitehall and local authorities and even with companies in the private sector simply in order to meet a government policy objective. Therefore, we welcome that and we consider it important, particularly in the light of the fact that public trust in the ability of government to keep personal details safe—this should be stressed—is at an all-time low. The noble Lord will remember that only last year HMRC lost the personal data of almost half the population, leaving, I am told, some 7 million families worried about the security of their bank accounts. More recently, we have heard about the details of thousands of criminals, held on a memory stick, being lost by a government contractor. Therefore, we will continue to oppose any steps towards creating an even larger database by stealth and thus we welcome the dropping of Clause 152.

I move on to the questions about DNA raised by the noble Lord, Lord Pannick. We have consistently called for the National DNA Database to be placed on a statutory footing. Having confirmed their intention to respond to the recent ECHR judgment, which I mentioned earlier, the Government should follow through that pledge rather than attempt to shoehorn arrangements into the Policing and Crime Bill to give the Home Secretary the right to make regulations on the retention and destruction of photographs, CCTV images, fingerprints and impressions of footwear, as well as DNA samples, without the need for a full debate in Parliament and without giving any indication of what those regulations might be. The noble Lord, Lord Pannick, referred to the Government's response to this on page 8 of their report. He stressed that the Government had announced that there would be consultation. On 7 May, we finally got the consultation document from the Home Secretary setting out her proposals for a retention framework, which, as the Government's response says,

"seeks to gain the support and confidence of the public and balances public protection with the rights of the individual".

The Minister will know the criticisms that I have made of some of the consultations that his department has conducted in the past—that is, how long they have taken and how long we have waited for a response from the Government. I shall be very grateful for anything that he can say on that matter and, in particular, if he can say a little more about when he hopes the Home Office will complete that consultation.

As many noble Lords have pointed out, there has been a massive expansion of CCTV over the past few years. It has delivered many disadvantages in undermining civil liberties and bringing about a loss of privacy and it is questionable whether it has brought any advantages. The noble Lord, Lord Peston, stressed that we had to ask whether it works and whether there are better ways to spend the money. He thought that street lighting might be a better approach. He should remember that, if he expands street lighting, there will be further objections from the astronomers. There will always be other people who worry about these matters, and there are genuine complaints about the loss of darkness that we experience. Going back to the importance of CCTV, I think that it is worth looking at the remarks of one senior policeman—I think that it was the head of the Visual Images, Identifications and Detections Office at Scotland Yard—who revealed that only 3 per cent of crimes are solved by CCTV. The noble Lord is correct to ask whether it works. It might, as my noble friend Lady O'Cathain said, make people feel better and safer, but it does not do anything to make us safer, as it does not lead to a greatly increased rate of convictions.

I end by referring to the closing remarks of my noble friend, who stressed that paragraph 144 was possibly the most important one in the report. I suggest that it might be framed and put on the desks of all Ministers. The last sentence, in particular, would be a timely reminder to them of how to make up their minds on these matters. It says:

"Privacy and executive and legislative restraint should be taken into account at all times by the executive, government agencies, and public bodies".

If the Government could bear that in mind, there would be no need for a further report in due course from the Select Committee on the Constitution and a further debate of this sort.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 11:41 am, 19th June 2009

My Lords, I start by warmly thanking the noble Baroness, Lady D'Souza, for her moving and personal tribute to Lord Dahrendorf. It was clearly a tribute to one of her noble friends in every sense. It was a very moving tribute and we are grateful to her for coming in to this debate. As someone who did not know him as well as the noble Baroness did but who respected him from afar as a fellow Member of this House, I have two points to make. First, what an honour it was for the United Kingdom that he should choose to come here and become a citizen of this country and then a Member of this House. Secondly, in a sense, the debate in which we are indulging today, which involves these difficult and complex questions of liberty of the individual and security of the state, and the interrelationship between the two, is perhaps an appropriate one for the moving and personal tribute given by the noble Baroness. I thank her on behalf of the House.

I also thank the noble Lord, Lord Goodlad, for introducing the debate and all noble Lords who have spoken in it. I thank him not just for introducing the debate but for having chaired the committee along with the late Lord Home while it discussed these important topics. The noble Lord and his committee have made an important contribution to the debate on surveillance and the report sets out clearly the issues facing us all. The Government responded in May and I have just seen the constructive analysis published by the committee this month.

As I said, the issues are very complex. The Government have to strike a balance, as all noble Lords have said, between the right of the public to their privacy, their right to the more effective delivery of public services and their right to protection from crime and terrorism. I want to make it clear that the Government's role is to safeguard our citizens from those who would seek to do us harm while ensuring that our rights to privacy and freedom are protected. Broadly speaking, the noble Lord's committee, this debate and the recent debates in this House—I have in mind the one called by the noble Earl, Lord Northesk—have sought to consider the question of the role of the state in protecting civil liberties and freedom. Our country has a proud tradition of individual freedom. This involves freedom from unjustified interference by the state. It also includes freedom from interference by those who would do us harm.

We believe that as a Government, we have put in place a strong legislative framework to protect the rights of individuals. This includes the Human Rights Act which obliges public authorities to comply with European convention rights, including the right to respect for private life. That right is always balanced against collective interests, such as national security and the prevention of crime. The noble Baroness, Lady Manningham-Buller, reminded us what the convention says in relation to the state's role in that, too. It is right that we should constantly satisfy ourselves that we have got that balance correct.

For example, the balance needs to be right in a rapidly moving world. Developments in technology are especially rapid, providing greater opportunities and benefits to us as individuals. But those who would do us harm can also take advantage of the developments. This creates an ever-increasing challenge as we seek to safeguard and protect the public. That is a challenge that the Government and their enforcement agencies are duty bound to respond to. The use of data is essential to delivering efficient, effective and joined-up public services. Recently, communications data, which are the who, the when and the where of communications—not the content—have been key in securing convictions in the Rhys Jones and Hannah Foster murder cases and to bring to justice those responsible for the suicide terror attack at Glasgow Airport. Such data also helped to uncover a global online paedophile network which has so far led to 50 arrests in the United Kingdom.

DNA techniques have helped bring thousands of serious offenders to justice, helping police solve around 1,000 rapes and murders in 2006-07. More than 18 million employment checks have stopped over 80,000 unsuitable people working with children and vulnerable adults in the past four years alone. Focused targeting of dangerous individuals has helped us to pre-empt many attacks and bring serious criminals and terrorists to justice. Indeed, if these opportunities were ignored or not put to their full benefit, it is not just your Lordships who would criticise the Government, but the general public in their millions.

The Government will always take a proportionate view of what needs to be done to protect the public and respect individual privacy and we will need to be flexible in our approach if circumstances require it. The debate about the new world we live in—the 21st century as the noble Baroness, Lady Miller, put it—and respect for privacy is a central part of our approach to security. Being open about this is also why we have set out a principled approach to the use of information in preventing crime and terrorist acts. In reviewing existing policies and processes, the Government will seek to ensure that due consideration is given to the following key principles at all times.

First, are robust safeguards in place to protect information and individual liberties? Secondly, are our plans and actions proportionate to the damage and the threat they are seeking to prevent? Thirdly, are we being as transparent as possible? Fourthly, are citizens being given the right amount of choice? Those four principles underpin our approach to privacy and security: proportionality, safeguarding, transparency and, perhaps above all, common sense. Applying the common-sense test throughout, we need to make sure that policies and processes are proportionate and balance the respect for privacy with the potential harm. We need to ensure that robust safeguards are in place. We will be as open and transparent as possible with the public about what we do and why we do it.

As part of the Government's commitment to proportionality and necessity, we have made several announcements recently. I make no apologies for consulting the public on these vital issues and referring the committee to the consultations in our response. On DNA for example, we have set out clear proposals and are asking for views on them as one part of the policy-making process. That must be right. We would certainly be criticised by noble Lords if we pre-empted the conclusions of those consultations.

Let me turn to some of the large topics raised. I apologise in advance for not dealing with all of them. On DNA, which is a very important topic, as the House knows well, the European Court of Human Rights found on 4 December last year in the case of S and Marper a violation under Article 8 because of the "blanket and indiscriminate" retention policy for DNA and fingerprints. However, the court also indicated that it agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and therefore prevention of crime, and recognised the need for,

"an approach which discriminated between different kinds of case and for the application of strictly defined storage periods for data".

We in this country have long recognised the importance of DNA as an investigative tool in helping to detect offenders and bring them to justice and, as important, if not more important, in helping to eliminate the innocent from inquiries. We know from the research that between March 2001 and 31 December 2005, there were approximately 200,000 DNA profiles on the National DNA Database, which would previously have had to be removed, before legislation was passed in 2001, because the person was acquitted or charges dropped. The startling fact is that of those 200,000 profiles that applied to those arrested but not convicted, approximately 8,500 profiles, from some 6,290 individuals, have been linked with crime scene profiles involving nearly 14,000 offences. Those are offences of all kinds, but they include 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 supply of controlled drugs offences.

I suggest to the House that that is a startling fact and one that we cannot forget in the arguments about DNA. We, of course, fully accept the judgment of the European Court and the need to implement the judgment in open and public debate. That is why we published our proposals in a public consultation document on 7 May. I have been asked when we will complete that consultation. We aim to publish the summary of responses to that paper in September of this year and to consult on draft regulations to be laid before the House towards the end of the year.

That document, Keeping the Right People on the DNA Database, sets out a statutory framework aimed at striking the right balance in this difficult area. To achieve that important balance, we have made proposals in a number of key areas in which noble Lords have been interested. The noble Lord, Lord Pannick, in particular, asked me some questions about them. Among those proposals are, first, that all samples, whether from people who are arrested and not convicted or convicted, will be destroyed. Secondly, profiles for adults arrested and not convicted will be retained for six years, and for those arrested for a violent, sexual or terrorist-related offence for 12 years. Thirdly, we propose specific arrangements for juveniles to delete profiles and fingerprints on their reaching 18 years old, provided that they have not been involved in more than one offence.

Your Lordships will be aware that at paragraph 467 the Select Committee report recommended the replacement of the existing statutory framework and the provision of regulatory oversight of the national DNA database. On the statutory framework, we have submitted proposals to replace it and, indeed, to go further. Beyond what I have already outlined, we propose to place in regulations the criteria for the person to apply for the deletion of DNA data ahead of the expiry of the six or 12-year period. We are also proposing to put in place an independent monitoring and scrutiny process, of the applications of the regulations and enhance the independent membership and accountability, of the national DNA database strategy board. We hope that those measures will achieve the same aim as the recommendations of the committee on this important area of policy.

The noble Baroness, Lady O'Cathain, talked about a universal database. Let me reply in this way. We acknowledge that of course there is support in some parts of the public for a universal database, but there are similarly strong objections to it. It is a subject that requires much wider public debate, not least to consider the ethical and practical issues involved. We also want to consider the resource implications. We have no plans to introduce a universal database.

The noble Lord, Lord Pannick, asked a series of questions. If he will forgive me, I shall write a letter to him, which of course will go to all Members who are here, dealing in some more detail with his questions. In general terms, the figures that I have specifically concentrated on about the DNA of those who were arrested but not convicted, and the fact that the profiles linked so closely to some really serious offences in the following few years is, in my view, an important answer to the noble Lord. Research has also been carried out by the Jill Dando Institute which suggests that those who are arrested and not convicted have a propensity to offend that is similar to those who are arrested and convicted but who have not been given a custodial sentence. I refer the noble Lord to that research, but I would take up too much of the limited time I have left if I were to attempt to answer him any further. Also, I have not forgotten his last question about the chief constable or some judicial authority.

We believe that CCTV is a powerful crime-fighting tool. The noble Lord, Lord Henley, gave the figure of 3 per cent for the number of extra convictions. What he did not mention was the crime it deters. There is no doubt in my mind that CCTV deters crime. If I may say so, if you ask anyone outside—the general population sometimes have considerable wisdom—they will concur with the general suggestion that CCTV is indeed a powerful tool, and that they are grateful that widespread CCTV exists. Police operational experience and various research shows that it deters and detects crime and helps to secure convictions. What seems to have been slightly dismissed in the argument today is that it also reduces fear of crime, which I would have thought is pretty important to this House, as well as to the rest of the country. In case there is any doubt about it, we remain committed to the use of CCTV in helping to make communities feel safer.

My noble friend Lord Peston raised interesting questions about CCTV and specifically asked what is happening to be independent inquiry. The National Policing Improvement Agency, will be disseminating the Campbell collaboration review, to police and key stakeholders later this summer. The review will be made publicly available by being placed on the internet.

Moving on to RIPA, I was most interested in what the noble Baroness, Lady Manningham-Buller, had to say about that. Our public consultation seeks to explain and obtain views on the public authorities which have been permitted by Parliament to authorise key covert investigatory techniques under RIPA. We are seeking the public's views on questions such as which public authorities should be able to authorise investigatory techniques, such as covert surveillance in public places; when and why such techniques should be used; whether the rank of authorising officers in local authorities should be raised to senior executive; and whether elected councillors should also play a role in overseeing any use of covert techniques by local authorities.

There were a number of interesting comments from noble Lords in this debate, several of which centred on the role of local government as regards RIPA. As the noble Baroness, Lady Miller, reminded us, RIPA did not create a new power to enable local authorities to carry out covert surveillance. It established a regulatory framework to ensure that the powers were used appropriately and that proper consideration was given to human rights. Of course, there are examples of those powers being used inappropriately. However, I say to my noble and learned friend Lord Morris of Aberavon, that the example he gave of a local authority using RIPA against a Traveller who defrauded an elderly householder by pretending to do much more work than he had done did not seem to be the best example that could be chosen of local government snooping. One would naturally think that the elderly householder who was being defrauded was the victim of a serious offence and someone the courts would seek to protect by imposing a long prison sentence. We have to make sure we get the balance right. As my right honourable friend Jacqui Smith said in her speech in December, this power has been misused. The importance of the inquiry that we are entering into is to make sure that it is not misused in future.

A lot was asked about the Information Commissioner. Many important points were made about that role, not least by the noble Baroness, Lady Miller. I think the House will want to thank the Information Commissioner, who is about to retire, and will be pleased that he was honoured in the recent Queen's Birthday Honours List. There are some important points around the Information Commissioner's role, which I do not have time to go into during this reply. The noble Baroness will know well that a Bill is going through this House to make available to the commissioner powers to assess central government departments' and public authorities' compliance with the Data Protection Act 1998; to impose a deadline and location for providing information relating to investigations; and to require any person where a warrant is being served to provide any information required to determine compliance with the Data Protection Act. We are also proposing to commence the provision made in the Criminal Justice and Immigration Act 2008—some of us will have happy memories of it—to impose civil monetary penalties on data controllers for deliberate or reckless loss of data.

I think I have reached the end of the time I should take in troubling your Lordships' House. If there are matters that I have not touched on, I shall write to the noble Lord, Lord Goodlad, and distribute the letter. This has been an excellent debate on an excellent report, and the Government thank the noble Lord and his committee. I have done my best in the few minutes I have had to try to show that the Government do, and always will, attempt to take a principled and proportionate view of what needs to be done to protect the public and respect individual privacy. We must never be complacent, and where change is required, we will make it, but I strongly believe that we do not live in a surveillance society and that this Government are determined to make sure that we never do.

Photo of Lord Goodlad Lord Goodlad Conservative 12:04 pm, 19th June 2009

My Lords, I echo the tribute paid by the noble Baroness, Lady D'Souza, to the late Lord Dahrendorf. He was, if anybody was, truly a citizen of the world. He had almost uniquely wide experience—frequently harsh experience—of the world. All those who knew him over the years, who from time to time thought they were vaguely expert on a particular subject, always found that he was totally up to speed and had some wise comment, gently communicated, to contribute. I was never taught by him, but he must have been a truly great teacher. He will be deeply missed by all those whose lives he touched and enriched, not least your Lordships'.

This has been an extremely helpful debate, and I am most grateful to all those who participated in it. Great expertise has been brought to bear both from the Back Benches and the Front Benches on a range of self-evidently important, sometimes disparate but linked, issues. I am particularly grateful to the Minister who, with his invariable courtesy, omniscience and, given the range of his responsibilities, apparent ubiquity, has sought to reply to most of the considerations that were raised. The noble and learned Lord, Lord Morris of Aberavon, who is, I think, the senior member of your Lordships' Select Committee, said that the Select Committee's work on this matter has been brought to a conclusion, and that is true. It has, certainly for the moment. However, the work of Parliament on these issues has certainly not been brought to a conclusion. We will scrutinise with the greatest care what the Minister said. As parliamentarians and possibly, in future, as the Select Committee, we will look at this issue all the time. Like General MacArthur, we shall return.

Motion agreed.