It was surprising and disappointing to watch as the Labour government – which gave us the Freedom of Information Act – became the most authoritarian British regime in modern times. As we at Big Brother Watch pointed out in our manifesto before the election, the arrival of a new government offered an opportunity to undo some of that work – and indeed, both parties in the Coalition pledged before the election to reverse the rise of our surveillance state, and reaffirmed that intention in the Coalition agreement.
Here’s a whirlwind tour of the live issues in the liberty and privacy spheres.
What has already been done by the Coalition:
The appalling ContactPoint database has been scrapped. A database designed to hold the details of all the children in England, accessible to hundreds of thousands of people, was a dreadful and disproportionate intrusion into private life, the very apex of both our peculiar national obsession with paedophilia and the modern mania for surveillance. It undermined childhood and threatened our proud tradition of volunteerism and its abolition is tremendous, both in what it achieved and the direction and purpose it gave to this area of our national life.
Identity cards for UK nationals have been scrapped. Much more importantly, so has the database behind them – meant to be an alarmingly comprehensive ‘single source of truth’ held by the state about the citizen (with swingeing penalties for failure promptly to notify the authorities about changes). The end of the scheme represents the apotheosis of perhaps the most successful public campaign in modern times.
On the other hand, foreign nationals are still required to have them; whilst the possibility of cards for British citizens has been ended for the time being, the relevant structure is still there, for foreign nationals. In fact, it has been accelerated and made obligatory for them. The implementation of the required structure for cards – of the equipment, the cards, the chips, the readers, the staff training and so forth – is the important thing. Who one requires to be entered into such a database and carry those cards is just a practicality. The potential future implementation of a wider scheme is rendered much, much easier by the existence of cards for foreigners.
Furthermore, cards are not needed for foreign nationals in the first place – if they are here legally, they have passports or similarly verifiable and satisfactory identification documents. If they’re here illegally, how likely are they to compliance with the ID card scheme?
Reviews that are being/going to be held by the Coalition:
The removal of DNA profiles of innocent people from the national DNA database This is perhaps the issue on which the need for reform is most clear-cut. When the European Court gave judgement in the case of Marper in 2008, the practice in England and Wales of retaining (and uploading to the database) DNA samples acquired by the police from those not guilty of any offence was decried by the highest possible authority. It has remained so ever since, without redress. That failure to act made a perverse kind of sense under the last government, which believed that it was right for the state to keep DNA profiles, however acquired. But both parties in the new government pledged to change the situation in light of the vast swathes of innocent people on the database today (remember ‘reclaim my DNA’?). So, (as I’ve written before) it is therefore surprising and disappointing that nothing has been done.
The police have (probably rightly) continued in their indiscriminate DNA-snatching practice unabated, on the basis that they follow the guidelines given to them by the Home Office until they are changed. So the guidance should be changed tout de suite. I know that James Brokenshire MP regularly receives enquiries from his Parliamentary colleagues about when action is to be forthcoming; each MP has a number of concerned constituents affected by this issue – and holding answers can only hold for so long, especially in light of such specific, clear pledges. Not only did the Conservative Party run their ‘reclaim My DNA’ campaign – they also gave a smaller but very specific pledge in the 2010 Manifesto: those wrongly accused of minor crimes would have an automatic right to have their profile withdrawn from the database. But, as I say, nothing has been done, and Chief Constables continue merrily to add thousands such samples to the database.
Covert surveillance by local councils (under the 2000 Regulation of Investigatory Powers Act or otherwise) – the power to conduct covert surveillance rests with Councils, who can authorise themselves to mount surveillance of their residents – and do so, regularly – we identified over 8,500 separate operations in the past two years. It’s just what you think it is – hidden cameras, a man in the bushes, watching from a stake-out or a parked car – the man from the Council who thinks he’s James Bond, a bureaucrat on steroids. It’s not for the serious crimes or terrorism people thought the legislation was for – it’s for putting your bins out at the wrong time, for dog fouling, spying on council employees, for breaking the smoking ban, for littering, for noise nuisance. If true, the things being investigated are wrong, but they don’t justify covert surveillance – it’s entirely out of proportion. The cure is worse than the disease.
Such issues can be solved without such excessive powers; since 2007,Bradford Council has disowned these intrusive tools; instead, they write to people saying, we’re going to investigate (for example) a noise nuisance complaint in your area (I suppose this is ‘overt surveillance’). Unsurprisingly, compliance goes up – so, even without reference to privacy, just in terms of success, these powers are unnecessary. Surveillance powers should be removed from local authorities altogether: if an offence is serious enough to warrant covert surveillance, it shouldn’t be in the hands of councils – it should be with the police. If not, then innocent victims of it should have the right to know that they were watched, a right you currently don’t have (so it’s not scaremongering, but simply stating the obvious, to say, it could have happened to you). It would change the whole culture of surveillance if those conducting it knew that their actions would have to be justified to their victims. There should be a requirement for a councillor to sign off on the surveillance, so that there is at least an element of democratic accountability in the process. Furthermore, councils should be required to obtain a warrant before conducting such surveillance. A promise to that effect on the last point was specifically made in the Conservative Party’s manifesto – nothing has yet been done.
Reform of the Independent Safeguarding Authority Established in 2006, the ISA was created after the murder of Holly Wells and Jessica Chapman by Ian Huntley. Those working with vulnerable groups such as children and adults with learning difficulties face enhanced criminal vetting procedures before taking up their posts. Whilst of course professionals working in these environments should have background checks, volunteer groups rightly complain that the scheme is overly draconian and intrusive in their nature and is actually harming those it seeks to protect by making people less likely to be willing to help in future. Theresa May has announced that the ISA would be ‘fundamentally re-modelled’ in order to reflect a ‘common sense’ approach to vetting those working with children and vulnerable adults, and halted the previous government’s plans to force all volunteers to register with the ISA from July 2010. The Home Office has calculated that the ‘scaling back’ of the project will save taxpayers around £100 million per year. The manner of this reform has yet to be clarified and those who are kind enough to give their time in the fields concerned remain uncertain about the future of their work. Big Brother Watch would scrap the ISA altogether but in the absence of such a decision the reforms must at least be announced post-haste.
CCTV regulation: Big Brother Watch’s report showed that council-run CCTV has trebled in the last ten years. That’s working off a high base: a decade ago, people were already alarmed by the extent to which we were being watched - the network has trebled since then. Our report doesn’t reflect the large number of cameras held by others – by Transport for London, by Government ministries, or in private hands. So the true figure is really very high.
It matters because CCTV cameras are not good in - and of - themselves. To be worth paying for, they have to help to prevent or help to detect crime. If they don’t do either, then they are worse than useless - people feel a false sense of security because of them, policing techniques are increasingly reliant on them, they cost a lot and they intrude on privacy.
Cameras are often not working or turned off (as happened in an unpleasant beating in Somerset) or pointing in the wrong direction – much worse than them simply not being there, as law enforcement becomes dependent on an unreliable resource. When they’re working and turned on and pointing the right way, footage is often scrubbed before law enforcement officials collect it. When it’s working, turned on, pointing in the right direction and not scrubbed, the quality of footage is often such that courts cannot use it. They let people down all the time.
There have been 44 proper studies of CCTV. Taken together, they show that crime is not driven down by CCTV (with the exception of a marginal benefit to safety in car parks). That was confirmed by a recent Metropolitan Police report, which stated that one crime per year was ‘solved’ per thousand cameras. I’m not a Luddite. Technology has a role to play in law enforcement. There are specific cases you can point to where CCTV has helped – but against those must be weighed the millions of man-hours and millions of pounds that get pumped fruitlessly into cameras, and the harm done by the presumption of guilt.
The public purse offers finite resources, and money spent in this way is money that cannot be spent on other forms of policing, such as officers on the street. It’s a question of balance. We’re the only country that’s gone so far down this path. The Shetland Islands has more CCTV cameras than San Francisco Police Department.
Even putting the occasional cases of outright abuse of the network, there are obvious privacy issues raised by CCTV which usually go ignored, but shouldn’t. People are increasingly concerned by the capture and retention of the images of innocent people without their consent. Part of society is unambiguously private, like bedrooms (sometimes intruded into by those who run CCTV, but in principle private). Part of society is unambiguously public and needs to be monitored, for example customs areas at airports. There is an argument taking place about what happens in the rest. Some think it’s OK in principle to record the rest, all the time, just in case. I don’t. That goes too far.
One of course has to rebut the facile ‘nothing to hide, nothing to fear’ – the reverse should apply in a free society. If you have done nothing wrong, why should the state record your whereabouts and what you’re doing? If you think that if you have ‘nothing to hide, nothing to fear,’ that privacy has no place in the discussion of CCTV, then you will note that the largest proportion of violent crime in this country is domestic violence in one form or another – and you won’t mind having a camera in your house. If you’re not doing anything anti-social, you won’t mind having an ASBO. If you’re not doing anything criminal, you won’t mind a curfew. If you have nothing to hide, why do you have curtains? Anonymity is not a crime.
CCTV is being used to monitor and identify peaceful protesters with urveillance of those exercising democratic rights of protest – freedom of assembly, speech, movement.
A data set of personal information is also being built up which is valuable and open to future abuse (especially given the rapid development of facial mapping). Only a fool would presume that all people in all future governments and all those in power in future times will be benign.
CCTV’s advocates often claim that ‘people like it.’ Certainly, asked something like ‘do you approve of the use of CCTV to fight crime?’ most people will answer yes. But, absent a choice between CCTV and another method of law enforcement, is that really an endorsement of CCTV, so much as a desire to see crime solved?
There should be a requirement for a public consultation process before cameras are installed. Tests I’d suggest should be applied to CCTV:
1. Necessity – is a camera really needed in location X? If so, is it still needed? Once it’s gone in, it should periodically be reviewed. Councils install cameras and then good ones, like Havant, strip out cameras that do nothing (in Havant’s case, 30 cameras); bad councils just leave them.
2. Privacy considerations should be applied to cameras which are installed – even if a camera is required in location X, should it be able to pivot to this or that angle, showing a view of private property, into that bedroom, etcetera?
3. The decision-making process should be public – because nobody knows the problems and crime in your area better than you do.
Automatic Number Plate Recognition (ANPR) regulation ANPR is currently being used to take up to 14 million photographs of vehicles and their occupants each day. In London, cameras that were installed to police the congestion charge are now also accessed by the police for number plate recognition. There is a balance to be struck between surveillance, security and crime prevention and an unacceptable level of intrusion into people’s lives. The Coalition claims to be determined to ensure that measures which impinge on civil liberties, like this one, are proportionate and properly controlled.
The Freedom Bill will apparently regulate CCTV and ANPR to ensure that their use is ‘proportionate and retains public confidence.’ We therefore await it with great interest.
The Counter-Terrorism agenda, including:
Random stop and search – again, Britain has lost on this issue in the European Court – twice. Hundreds of thousands of people have been stopped under these powers, and of course no terrorist has been caught. Rather than a genuine counter-terrorism tool, in practice it has often constituted a way of bullying and hassling the increasingly abject population. We have to decide what kind of society we want to live in. Random stop and search allows the state to confront the individual in the street, without cause, and demand your papers. It’s wrong.
28 day detention continues under the Coalition. Five people have been detained to the 28 day limit. Three were entirely innocent, all of them being released quite without charge – each case constituting a shocking abuse of freedom. The remaining two were charged, but in both cases the Metropolitan Police have confirmed that the relevant evidence relied upon to charge them was obtained within 4 and 12 days of arrest respectively. The Liberal Democrats explicitly pledged to bring the limit down to 14 days. In light of the examples we have seen, the case for that seems irresistible. At the height of Northern Ireland’s Troubles in 1984, the members of the British Cabinet were targeted by an IRA bomber at Brighton. Norman Tebbit, was pulled from the rubble of the Grand Hotel several hours after the explosion: both he and his wife were seriously injured. Margaret Thatcher and her husband Dennis both narrowly avoided injury themselves. Five people were killed. The Government itself was attacked in the most physical, personal and literal sense. Yet even then, government did not infringe upon liberties as the last Government did with the extension of detention without trial, or with…
Control Orders There are now nine people on Control Orders in the United Kingdom. There have been 45 to date (of whom, seven have absconded!). It is a standing affront to the rule of law that anyone’s liberty is curtailed not only without charge, but without even knowing the nature of the allegations against them. Each time a case actually goes to court, the Government loses and another such order falls. Control Orders should be abandoned immediately, rather than defeated on an ad hoc basis as the Government loses case after case. After all, it is unjust enough to limit the liberty of a person in this way - but to continue to do so, knowing that the case will be decided against the Government when it wends its way to court, but keeping them so ‘controlled’ until then, is morally bankrupt. It entails further months of unjustifiable action in each case, simply on the basis of which gets to see the inside of a courtroom first. The Liberal Democrats explicitly pledged to scrap them. They should have their way.
Tomorrow, Alex Deane will highlight the other side of the Coalition’s programme: those civil liberty issues they have yet to begin investigating and the areas in which they have actually been more draconian.
Alex Deane is a barrister, a former chief of staff to David Cameron, and, Director of Big Brother Watch.