Lord Rosser (Lab)
My Lords, I first congratulate the noble Lord, Lord Clement-Jones, on securing this debate. Obviously, all who have spoken deserve a response to the points they have raised, but I am particularly interested in what the reply will be to the noble Baroness, Lady Falkner of Margravine, who asked who was and who was not consulted and why. The point she made there most certainly deserves a response from the Government.
The Surveillance Camera Code of Practice was first published in June 2013 under provisions in the Protection of Freedoms Act 2012. It provides guidance on the appropriate use of surveillance camera systems by local authorities and the police. Under the 2012 Act these bodies
“must have regard to the code when exercising any functions to which the code relates”.
As has been said, the Government laid an updated code before both Houses on 16 November last year and, as I understand it, the code came into effect on 12 January this year. The Explanatory Memorandum indicates that changes were made mainly to reflect developments since the code was first published, including changes introduced by legislation such as the Data Protection Act 2018 and those arising from a Court of Appeal judgment on police use of live facial recognition issued in August 2020, which was the Bridges v South Wales Police case.
Reporting the month before last, our Secondary Legislation Scrutiny Committee commented that the revised code reflects the Court of Appeal judgment
“by restricting the use of live facial recognition to places where the police have reasonable grounds to expect someone on a watchlist to be”
and added that the technology
“cannot be used for ‘fishing expeditions’”.
The committee continued:
“The Code now requires that if there is no suggested facial matches with the watchlist, the biometric data of members of the public filmed incidentally in the process should be deleted immediately. Because the technology is new, the revised Code also emphasises the need to monitor its compliance with the public sector equality duty to ensure that the software does not contain unacceptable bias. We note that a variety of regulators are mentioned in the Code and urge the authorities always to make clear to whom a person who objects to the surveillance can complain.”
As the regret Motion suggests, there is disagreement on the extent to which the code forms part of a sufficient legal and ethical framework to regulate police use of facial recognition technology, whether it is compatible with human rights—including the right to respect for private life—and whether it can discriminate against people with certain protected characteristics. Interpretations of the Court of Appeal judgement’s implications for the continued use of facial recognition technology differ too.
As has been said, the use of facial recognition is a growing part of our everyday lives—within our personal lives, by the private sector and now by the state. It can be a significant tool in tackling crime but comes with clear risks, which is why equally clear safeguards are needed. It appears that our safeguards and understanding of and frameworks for this spreading and developing technology are largely being built in a piecemeal way in response to court cases, legislation and different initiatives over its use, rather than strategic planning from the Government. Parliament—in particular MPs but also Members of this House—has been calling for an updated framework for facial technology for some years, but it appears that what will now apply has finally come about because of the ruling on the Bridges v South Wales Police case, rather than from a government initiative.
The police have history on the use of data, with a High Court ruling in 2012 saying that the police were unlawfully processing facial images of innocent people. I hope the Government can give an assurance in reply that all those photos and data have now been removed.
While a regularly updated framework of principles is required, as legislation alone will struggle to keep up with technology, can the Government in their response nevertheless give details of what legislation currently governs the use and trials of facial recognition technology, and the extent to which the legislation was passed before the technology really existed?
On the updates made to the code, it is imperative that the technology is used proportionately and as a necessity. What will be accepted as “reasonable grounds” for the police to expect a person to be at an event or location in order to prevent phishing exercises? As the Explanatory Memorandum states:
“The Court of Appeal found that there is a legal framework for its use, but that South Wales Police did not provide enough detail on the categories of people who could be on the watchlist, or the criteria for determining when to use it, and did not do enough to satisfy its public sector equality duty.”
Can the Government give some detail on how these issues have now been addressed?
A further area of concern is the apparent bias that can impact this technology, including that its use fails to properly recognise people from black and minority-ethnic backgrounds and women. That is surely a significant flaw in technology that is meant to recognise members of our population. We are told that the guidance now covers:
“The need to comply with the public sector equality duty on an ongoing basis through equality impact assessments, doing as much as they can to ensure the software does not contain unacceptable bias, and ensuring that there is rigorous oversight of the algorithm’s statistical accuracy and demographic performance.”
What does that look like in practice? What is being done to take account of these issues in the design of the software and in the datasets used for training for its use? What does ongoing monitoring of its use and outcomes look like? The Secondary Legislation Scrutiny Committee raised the question of who a person should direct a complaint to if they object to the use of the technology, and how that will be communicated.
We have previously called for a detailed review of the use of this technology, including the process that police forces should follow to put facial recognition tools in place; the operational use of the technology at force level, taking into account specific considerations around how data is retained and stored, regulated, monitored and overseen in practice, how it is deleted and its effectiveness in achieving operational objectives; the proportionality of the technology’s use to the problems it seeks to solve; the level and rank required for sign-off; the engagement with the public and an explanation of the technology’s use; and the use of technology by authorities and operators other than the police.
What plans do the Government have to look at this issue in the round, as the code provides only general principles and little operational information? The Government previously said that the College of Policing has completed consultation on national guidance which it is intended to publish early this year, and that the national guidance is “to address the gaps”. Presumably these are the gaps in forces’ current published policies. What issues will the national guidance cover, and will it cover the issues, with great clarity and in detail, which we think a detailed review of the use of this technology should include and which I have just set out? Unfortunately, the Explanatory Memorandum suggests that neither the College of Policing national guidelines nor the updated code will do so or indeed are intended to do so.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lord, Lord Clement-Jones, for securing this debate and all who spoke in it. Let me clarify that when I referred to those who are interested and knowledgeable about LFR as “geeks”, it was meant as a compliment. Sometimes it is difficult to get people to be interested in some of the things that we do in the Home Office. I am also grateful to the noble Lord for putting on record his views on the revised code, which came into force on 12 January of this year. I understand that it was published in full, and there is more detail in accompanying documents, including the College of Policing guidance and ICO guidance.
As I think the noble Lord, Lord Clement-Jones, said, the code was established in 2013 during the coalition Government under PoFA—the Protection of Freedoms Act 2012—to provide guidance to local authorities and the police on the appropriate use of surveillance camera systems.
Surveillance in schools is not really for the surveillance camera code of practice. Private use, which the noble Lord also talked about, is of course a DCMS matter. I am not trying to pass the buck, but it is not unusual for people to get those mixed up. In fact, that goes to the heart of what the Government are trying to do—namely, to try to simplify the landscape, which is all too often far too complex.
The principles in the code enable the police and local authorities to operate surveillance cameras in a way that complies with the breadth of relevant law in this area. Because the code is principles-based rather than technology-specific, it has remained largely up to date despite the pace of technological advancement in this area. Therefore, the changes do not increase the scope of the code or, indeed, its intended impact.
There have been a number of legislative developments and a key court ruling since the code was first published, which noble Lords referred to. The reason for updating the code was to reflect those changes, while we also took the opportunity to make the text easier for users to follow at the same time.
The consultees were mainly among policing and commissioners, including the Information Commissioner’s Office. The Surveillance Camera Commissioner published the draft, so it was in the public domain, and civil society groups commented on it, including the NPCC.
Lord Rosser (Lab)
Before the Minister sits down: is the issue of live facial recognition and its use by the police a matter for the police and crime commissioner to decide or for the chief constable to decide?
Baroness Williams of Trafford (Con)
It would usually be a matter for local forces in the context in which they are deploying it. In terms of the seniority of the officer who can authorise it, I do not know, actually. I just know it is a matter for local forces to decide when and for what purpose they are using it. But I can write to the noble Lord about that.
Lord Rosser (Lab)
I take it, since the noble Baroness did make a reference to democracy and democratic accountability, that surely, at the very least, since the police and crime commissioner is elected and accountable, it must be a decision for a police and crime commissioner, rather than a police constable who is not elected and not accountable in that way.
Baroness Williams of Trafford (Con)
The PCCs clearly have oversight of what their police forces are doing, and I would be most surprised if the PCC was removed from that sort of operational context.
Lord Alton of Liverpool (CB)
The noble Baroness was good enough to reference the statement from the FCDO. Would she be willing to take back to it the specific point I raised this evening about the company Hikvision, which is banned in the United States because of security, human rights and civil liberties concerns, and all the other things I said? I hope, therefore, that the noble Baroness will feel able to ask the FCDO why it has been banned in the US on the same intelligence we have, but not in the United Kingdom.
Baroness Williams of Trafford (Con)
I referenced this without mentioning the company’s name. I recognise the seriousness of the issue and I will take the point back.
I have had a note to say that it is at constable level, but of course they are accountable to the PCC.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for her comprehensive reply. This has been a short but very focused debate and full of extraordinary experience from around the House. I am extremely grateful to noble Lords for coming and contributing to this debate in the expert way they have.
Some phrases rest in the mind. The noble Lord, Lord Alton, talked about live facial recognition being the tactic of authoritarian regimes, and there are several unanswered questions about Hikvision in particular that he has raised. The noble Lord, Lord Anderson, talked about the police needing democratic licence to operate, which was also the thrust of what the noble Lord, Lord Rosser, has been raising. It was also very telling that the noble Lord, Lord Anderson, said the IPA code was much more comprehensive than this code. That is somewhat extraordinary, given the subject matter of the IPA code. The mantra of not stifling innovation seems to cut across every form of government regulation at the moment. The fact is that, quite often, certainty in regulation can actually boost innovation— I think that is completely lost on this Government.
The noble Baroness, Lady Falkner, talked about human rights being in a parlous state, and I appreciated her remarks—both in a personal capacity and as chair of the Equality and Human Rights Commission—about the public sector equality duty and what is required, and the fact that human rights need to be embedded in the regulation of live facial recognition.
Of course, not all speakers would go as far as I would in asking for a moratorium while we have a review. However, all speakers would go as far as I go in requiring a review. I thought the adumbration by the noble Lord, Lord Rosser, of the elements of a review of that kind was extremely useful.
The Minister spent some time extolling the technology —its accuracy and freedom from bias and so on—but in a sense that is a secondary issue. Of course it is important, but the underpinning of this by a proper legal framework is crucial. Telling us all to wait until we see the College of Policing guidance does not really seem satisfactory. The aspect underlying everything we have all said is that this is piecemeal—it is a patchwork of legislation. You take a little bit from equalities legislation, a little bit from the Data Protection Act, a little bit to come—we know not what—from the College of Policing guidance. None of that is satisfactory. Do we all just have to wait around until the next round of judicial review and the next case against the police demonstrate that the current framework is not adequate?
Of course I will not put this to a vote. This debate was to put down a marker—another marker. The Government cannot be in any doubt at all that there is considerable anxiety and concern about the use of this technology, but this seems to be the modus operandi of the Home Office: do the minimum as required by a court case, argue that it is entirely compliant when it is not and keep blundering on. This is obviously light relief for the Minister compared with the police Bill and the Nationality and Borders Bill, so I will not torture her any further. However, I hope she takes this back to the Home Office and that we come up with a much more satisfactory framework than we have currently.