These are the issues in which the Government has not yet announced an intention to review:
Trial by jury – the defence of trial by jury was a specific Liberal Democrat pre-election Manifesto pledge and a sentiment with which I venture to suggest most Conservatives would agree.
Reform of the Information Commissioner’s Office (ICO) I have criticised the ICO’s whitewashing of the Google Street View issue elsewhere - without venturing into specific cases too deeply, it’s plain that this is one of the most important privacy issues of our time and that action from the Office supposedly in place to protect us has been lacking. The Conservative Party pledged to strengthen the ICO’s powers. This has not been done; either the ICO should be stronger, or perhaps it should not exist at all.
Reform of The Office of the Surveillance Commissioner (OSC). After four years of operation, the Commissioner reported that the amount of unlawful surveillance conducted in this country has increased during his reign. The report disclosed (as if this was a good thing) that a ‘considerable proportion’ of the errors were due to the incorrect transposition of telephone numbers. That is to say that people were snooped on for no good reason due to administrative incompetence by the snoopers, and they have no right to know that their conversations were listened to, or who did it, or for how long, or what they heard. These unauthorised operations were not only intrusive, but also often extensive - the longest lasted for 24 days. That’s over three weeks of illegal surveillance by the state, of people against whom nothing at all has been proven, and have not even been charged, without any apparent repercussions for those who did it. Because the Commissioner refuses to release any details of these unlawful operations, the victims of this outrageous intrusion will never know that they and their families were watched. In such circumstances it is not scaremongering but simply stating the obvious to say that it could have happened to you. When the Commissioner’s report was discussed by our national broadcaster, in a moment of delicious but apparently unappreciated irony, the OSC - responsible for bringing accountability and transparency to this opaque and sometimes frightening field… refused to discuss the matter in public.
Intercept Modernisation Programme (IMP) – the obligation on ISPs to retain details of all telephone calls and emails should be abandoned. The IMP was announced in summer of 2008; it naturally proved controversial and a statement was released by the Home Office in November 2009 which announced that the project would not be included in the forthcoming Queen’s Speech. With limited parliamentary time left before the final date a general election could be held, the previous government’s failure to include the item in the speech effectively kicked it into the long-grass. The Conservative Party’s manifesto for the 2010 general election featured a commitment to ‘review relevant national databases and systems to develop a clear statement of purpose for each in line with the principles of proportionality and necessity’ - including the IMP. Since her appointment as Home Secretary, Theresa May has made few public pronouncements on the issue. At this stage, there is little to suggest that the Coalition government’s position on IMP has departed radically from that of the last administration. The scheme remains beached in the long-grass and awaiting a decision from the Home Secretary. It should be abandoned, like Contactpoint.
Children should not be fingerprinted in school for registration purposes or in order to get school dinners or library books – certainly not without parental permission (again, this was a specific Liberal Democrat pledge). Equally they should not be the subject of facial recognition technology.
Powers of entry – some 20,000 local council bureaucrats enjoy powers through over 1,000 different laws and regulations to enter private property without a warrant and without notice. This proliferation has spurred many of the most absurd laws of modern times, and like others in this list changes the nature of the relationship between the individual and the state. When so many ‘faults’ exist it’s almost as if normal life is unlawful – in the end, with so many technical infractions (energy regulations on your refrigerator, for example) they’ll catch you for something. Specific promises to address this by requiring a warrant to effect entry were made before election both in person and in the Manifesto. They should be carried out.
Chip and bin – Research by Big Brother Watch revealed that 2.6 million households in this country had had microchips installed in their dustbins (and none of them had been told about it). Plainly it was going to lead to ‘pay as you throw’ schemes. That was explicitly banned for the present by Eric Pickles but chips continue to be installed ‘to encourage recycling’ – it’s the same technology and can be switched to other uses, and it is equally intrusive.
The European Arrest Warrant (EAW) and accompanying European Investigation Order let ill-trained police from any European Union country arrest British people for ‘crimes’ that aren’t even offences in the UK or the United States. Patrick Reece-Edwards, from Dartford, spent several weeks in jail after Polish prosecutors sought his extradition on charges of possessing a forged motor insurance certificate. Dimitrinka Atanasova, a Bulgarian legal secretary, fled to Britain after threatening to expose her boss (the chief prosecutor) for misconduct. The chief prosecutor then personally requested her extradition from Britain on what a British judge agreed were ‘bad-faith’ (trumped-up) charges. Crucially, her case predated Bulgaria’s EU membership and adoption of the EAW. She was freed, but only after several months in Holloway Prison. Edmond Arapi, a Staffordshire waiter, was seized under an EAW issued by Italy after being sentenced to 16 years in absentia for a murder in Genoa in 2004. Yet he never left Britain in 2004. He spent time in Wandsworth prison before the Italians finally admitted it was a case of mistaken identity. Why have we allowed this to happen in our country? Britain has an opt-out – it should be used. Furthermore, the Lisbon Treaty created an ill-defined Public Prosecutor for Europe. The sooner the existence of this post is challenged the easier it will be to stop it.
A new privacy law? / Libel reform Two different schemes are currently mooted on this front, neither seems to possess any strong-willed governmental support. A requirement that Privacy Impact Assessments be conducted in relation to any initiative which involved data collection or sharing was proposed in the Conservative manifesto. There has been no action or hint of future action on this.
The Census Before the election, the Conservative Party’s position on the forthcoming Census (with which Big Brother Watch entirely agreed) was that it is ‘increasingly invasive and intrusive… [and] will erode public support, cost more and result in a less accurate survey. Just because the Government has the legal powers to ask these questions does not give the state the licence to ask anything they want.’ So said Nick Hurd, then shadow Cabinet Office spokesman. That is a very different position to that taken by our new Cabinet Office Minister… Nick Hurd. The man responsible for administering the Census, Glen Watson, confirms that Coalition plans for the census are… entirely unchanged. Mr Hurd’s urgings about scaling back the census seem to have fallen on his own deaf ears. Francis Maude says that ‘the expenses already committed to the census mean any changes are difficult.’ The 2011 Census Mr Hurd so decried, and will now enforce, is 32 pages long (frequently duplicating data already held by the authorities on databases such as the electoral register, school records, tax returns and GP information). It requires the evidence of proficiency in English, your health, when you last worked, disclosure of the identity of your overnight visitor(s), the kind of central heating you have, and makes the entirely hollow but nevertheless bullying threat of fines of £1,000 for non-compliance. Last time (in 2001), 390,000 people declared themselves Jedi and 3 million people refused to comply, and as there were fewer than 100 prosecutions, non-compliance comes pretty much entirely without repercussions: something I discussed elsewhere.
Body Scanners I shall address this contentious addition to airport security is a subsequent article.
A commitment to introduce no new large state databases and greater checks on data sharing within government. The recipient of public services should be at the centre of IT design not, as is currently, viewed as a passive end user.The transfer of police powers to private security firms and council wardens should simply be stopped. Private security firms and members of the public empowered through the Community Safety Accreditation Scheme do not have the vetting or public trust accorded to professional police officers.
Worse than Labour:
There are two grounds on which the Coalition has ventured even beyond Labour’s dismal record:
The Summary Care Record (SCR) – the massive NHS database of all our medical records was controversial enough that Labour suspended it before the election. It is unnecessary and intrusive, as well as wildly expensive. The Conservatives said http://www.kable.co.uk/conservative-nhs-national-programme-review-obrien-10aug09: ‘A Conservative government would “dismantle” central NHS IT infrastructure, halt and renegotiate NPfIT local service provider contracts and introduce interoperable local systems.’ Norman Lamb, then Liberal Democrat health spokesman, said: ‘The Government needs to end its obsession with massive central databases. The NHS IT scheme has been a disastrous waste of money and the national programme should be abandoned.’ Nevertheless, some three weeks into government by those two parties, a disgraceful u-turn was performed. The SCR is an unnecessary and intrusive piece of bureaucracy, as well as being wildly expensive. Doctors (most of whom say they wouldn’t go onto the database themselves, or allow their families onto it) have managed without it until now.
For the second year running the NHS topped the Information Commissioner’s Office list of data breaches in UK organisations: 3,000 breaches were found (how many others weren’t?) How can we have faith in the new online programme, when the NHS can’t keep our private data safe now? Those abuses are bad, and took place when files are restricted to individual hospitals and the people who worked in them. How bad will abuse be when files can be accessed nationally!? Do you trust everyone who has an NHS pass, including temps? The SCR will give over half a million people access to our medical records. Research by Big Brother Watch has shown how vulnerable the NHS is to breaches of privacy – this will make things much worse. I say that this is worse than Labour because at least Labour were honest about their intentions.
Empowering credit rating agencies to chase benefit fraudsters The move to commission agencies like Experian to act, in effect, as bounty hunters to catch people committing benefit fraud is a very bad idea. Nobody approves of benefit cheats, and of course when receiving benefits one has to sacrifice a certain amount of privacy in return for the certainty that one’s receiving that benefit legitimately. But mining private data on a routine basis on the off-chance of catching people out is a disproportionate invasion of privacy. There continues to be a presumption of innocence in this country, and trawling credit data and treating everyone in that broad category of people as suspects brings that into presumption question. Furthermore, there is or should be a bright line between the state and the private sector. Taking powers of legal investigation and enforcement which ought to sit with the state, and granting them to private organisations, blurs that line. Worse still, if profit-making companies are rewarded by the number of people they catch they will have a perverse incentive to sling accusations in any even marginally plausible case - because they’ll have nothing to lose and potentially something to gain in the smearing. There’s a reason we don’t pay the police per arrest – we’d all wind up getting nicked all the time.
In addition to all of the above, it should be noted that a wider review of the nature of the relationship of citizen and state is now effectively impossible. The British Bill of Rights (and responsibilities) proposed by the Conservative Party before the last election is plainly not going to happen. The Liberal Democrats are dead-set against it and whatever the merits of the case for a post-Human Rights Act delineation of rights and responsibilities, it is not to be for as long as the Coalition is with us.
It’s crazy that those issues currently being ‘reviewed’ are, in fact, languishing. It’s one of the few fields on which the two governing parties wholeheartedly agree. Furthermore, as we all know all too well, the Government is broke. This is an obvious policy area in which progress can be made whilst making savings. Complex databases, snooping surveillance operations and high-tech devices used to conduct them, the jobsworth bureaucrats who run all of it – the apparatus of the bully state costs a great deal of money. That expenditure is avoided when these leviathans are cut. We can be freer and save money all at the same time.
One cannot and must not write off the Government’s intentions on freedom, privacy and liberty until those processes are complete. But one might wonder why such reviews are necessary in the first place. The fundamental aspects of these various issues have not changed since the Coalition came to power. This matters because right now is the likely high point in the Government’s interest in freedom. The longer action is delayed, the more likely it is that bureaucrats get their claws into hitherto (more) principled politicians. The pressures of everyday events, of headlines, of terrorism, of the need to be seen to be doing something, will bite. Rather than being good news, the plethora of reviews and consultations may be disastrous.
Alex Deane is a barrister, a former chief of staff to David Cameron, and, Director of Big Brother Watch.