Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013

Earl of Erroll Excerpts

Wednesday 17th July 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013 and the Protection of Freedoms Act 2012 (Guidance on the Making or Renewing of National Security Determinations) Order 2013, along with copies of the attendant surveillance camera code of practice, which I will refer to as the code, and the guidance on the making or renewing of national security determinations, which I will refer to as the guidance, were laid before Parliament on 4 June and 24 June respectively. Both orders are made under the Protection of Freedoms Act 2012. This Act delivers important changes to the law, ensuring that we strike the right balance between respecting the rights of individuals and protecting the public, which reflects a key commitment of this Government. I will explain each order in turn.

The first order, on the surveillance camera code of practice, follows on from Section 30 of the 2012 Act and reflects a coalition agreement commitment to the further regulation of CCTV. The Government support the use of CCTV, automatic number plate recognition—ANPR—systems and other surveillance camera systems to cut crime and protect the public. In general terms, the public support their use. However, that support is conditional on these cameras being used proportionately to meet a legitimate aim and being used effectively in meeting their intended purpose. For too long we have seen the use of CCTV and the advance of technology develop without a proper regulatory framework, with ever greater potential for surveillance and ever greater potential to interfere with citizens’ rights and freedoms.

This code seeks to reassure the public about the use of surveillance camera systems and applies to England and Wales. Section 34 requires the appointment of a Surveillance Camera Commissioner, whose role is to encourage compliance with the code, review its operation and provide advice about it. Noble Lords may be aware that the Secondary Legislation Scrutiny Committee has considered this draft order, and the draft code, and has drawn the special attention of the House to these documents on the basis that they may imperfectly achieve policy objectives. My belief is that bringing the code into force will be a critical step in our incremental and measured approach to regulation.

We have worked closely with our partners including the police, local authorities, the Information Commissioner, the Chief Surveillance Commissioner and the Surveillance Camera Commissioner in developing this code. The code is based on 12 guiding principles which are applicable to any overt operation of CCTV in public places. Those who work to these guiding principles will be better placed to reassure the public about their intentions and to share images and information of evidential value with the police and the criminal justice system to help investigate crime and bring criminals to justice. The commissioner will provide additional information which complements the guiding principles and helps system operators turn them into reality.

We have always been clear that our approach to further regulation in this area is to be incremental and measured, starting with state surveillance and getting the basics right, then taking further steps as necessary, informed by advice from the Surveillance Camera Commissioner. This order also exercises powers under Section 33(5)(k) and seeks to add the three non-territorial police forces—the British Transport Police, the Civil Nuclear Constabulary and the Ministry of Defence Police—and the Serious Organised Crime Agency to the list of relevant authorities which will be placed under a duty to have regard to the code from the outset. Each has been consulted over the proposal and each has consented to it. Our intention in expanding the list to additional forces is to provide further assurance to the public that overt surveillance by the state is being effectively and transparently regulated.

I turn to the second order before the Committee today, which brings into force the guidance on the making or renewing of national security determinations as provided for by the Protection of Freedoms Act 2012. This order implements an important element of the Government’s commitment, set out in the coalition’s programme for government, to restore balance between the protection of individuals’ rights and protecting the public in respect of police retention of DNA and fingerprints.

We propose to commence the substantive powers in the 2012 Act from October this year. This will mark an important change. From this point, with the exception of convicted individuals, DNA and fingerprint material will not be held indefinitely. This guidance deals with a limited exception whereby it may be necessary to extend retention for the purposes of national security. We want to ensure that, in exercising their powers to extend retention by the making of a national security determination, chief officers and chief constables are doing so in an open, transparent and consistent way. This guidance seeks to achieve that. The guidance is introduced pursuant to Section 22 of the 2012 Act and is applicable throughout the United Kingdom. It sets out the basic principles underpinning the new powers, specific requirements governing consideration of necessity and proportionality and clear processes for making or renewing a national security determination, including appropriate direction as to the responsibilities of chief officers or chief constables.

The Act establishes for the first time a comprehensive regime for the retention, destruction and use of biometric material held for national security purposes. This regime is to be independently overseen by the new commissioner for the retention and use of biometric material—the Biometrics Commissioner, Mr Alastair MacGregor QC. The retention of biometric data by the state is a justifiable interference with the right under Article 8 of the European Convention on Human Rights where it is necessary and proportionate to do so and where it is in accordance with clearly defined law. The Act’s provisions, coupled with the guidance and the robust independent oversight we rightly and confidently expect from the Biometrics Commissioner, in my view achieves this objective.

We consulted extensively over the preparation of the code and the guidance which are before your Lordships for consideration today. The code and the guidance were published in draft form on 7 February and 26 March respectively for public consultation. There was broad support for these changes. A summary of the consultation responses and resultant changes made for each have been published on the Home Office’s website.

These orders are intended to build and maintain public confidence in both overt surveillance camera activity in public places and in the retention, destruction and use of DNA and fingerprint material held for national security purposes now and in the future. I commend them to the Grand Committee.

[The Earl of Erroll]

My Lords, I will say a few words because this is an area in which I take an interest. In principle, I have no trouble with using surveillance cameras around the place to find out what happened after an event and, in some cases, to anticipate what might happen. The only thing that has ever worried me is when things are linked together to try to surveil and track a population around. From that point of view, ANPR cameras could be used for purposes other than traffic management and could start to be used for tracking people. A lot of that stuff involves data protection, so all this looks fairly innocuous.

The main thing that I am worried about is whether it really does anything. At the end of it all, these are all good words. Are we just adding more cost and stuff than can be more effectively used elsewhere? It looks like we have just invented a couple of extra posts, which will be very nice for someone; it will do a bit more box-ticking so everyone will think that it has all been covered. However, if it starts being really effective, it will interrupt other people’s jobs where they do need cameras, and make them more difficult.

So I am giving a few words of caution: let us not waste public money on something that is merely a cosmetic exercise. At the same time, many of the issues that do matter in this are covered by the Data Protection Act, for instance accurate databases and things like that. So they are already covered elsewhere. Will having an extra commissioner really make a difference? It is obvious that I am sceptical about it. It does not really address the big problem about the surveillance state and things like that, but we do not have that yet, thank goodness.

[Baroness Smith of Basildon]

My Lords, I first thank the noble Lord, Lord Taylor, for his helpful explanations and information. Just prior to the Committee, I indicated to the Minister that we are considering praying against these instruments. I apologise if he was not told beforehand, although the Whips’ Office knows. In future I would talk to them directly. These are important issues.

I want to offer the Minister the opportunity to answer my questions first, because that might alleviate some of my concerns. His answers will be very important in that regard. The noble Earl, Lord Erroll, hit the nail on the head with some of the concerns that I want to raise as well. The Minister referred to our own Secondary Legislation Scrutiny Committee, which was quite damning about this order’s ability to achieve the objectives that the Government set out. It stated:

“While the principles themselves are commonsense, some of the explanation is vague, with frequently used terms such as ‘proportionate’ or ‘appropriate’ left undefined in the context”.

Those are wise words. I would impress on the Minister the committee’s final comment, which stated:

“The House may therefore wish to question the Minister about the Government's plans for the wider application of the code and to invite the Minister to clarify how its benefits will offset the costs of the additional bureaucracy involved”.

This SI increases costs and bureaucracy to local authorities and the police of installing CCTV. The Explanatory Notes claim that this is a policy decision motivated by a desire to halt,

“the extent to which private lives are exposed to ever greater scrutiny by other individuals, organisations or the State, leading in some instances to a potential exposure to criminality, or more generally, to an erosion of personal privacy”.

That is the point that the noble Earl, Lord Erroll, made. Can the Minister say where in this order is anything that restricts the use of CCTV by individuals or private companies and makes any difference to the potential exposure of criminality that the Government have identified? I am not sure what that means in the context of this order. It may be a government objective, but it is nowhere in this order that I can find, because only public bodies—mainly the police and local authorities—are bound by the order before us today. The consultation and the order will not prohibit the installation of CCTV. What it will do is increase the paperwork and bureaucracy, making it considerably more expensive.

The Government have made a commitment to lean government, and I do not think that it was just a reference to Eric Pickles’s diet when the Chancellor said it. The impact assessment states that this extra flood of bureaucracy is not subject to the Government’s principles of “one in, two out”, in terms of regulation. Why is that? What is the point of having such a policy if the Government can then simply exempt a regulation from it? That makes a complete nonsense of the policy. The Home Secretary said:

“After years of bureaucratic control from Whitehall … this government trusts you to fight crime”,

but apparently not where CCTV is concerned. Here, the Home Office is creating 25 pages of statutory guidance for local authorities to go through—25 pages of hoops for the police to jump through before they can install CCTV.