Protection of Freedoms Bill

Baroness Miller of Chilthorne Domer Excerpts

Tuesday 8th November 2011 Lords Chamber

[Baroness Miller of Chilthorne Domer]

My Lords, the Bill marks an important moment. It is the start of the turn of the tide from a very low point where sophisticated new technologies, fear of terrorism, authorities with little regard for privacy and a series of illiberal Home Secretaries combined to make the UK “surveillance Britain” under the previous Government. So when Justice called the proposals a sticking plaster, it missed the point. This Bill is a very important first step in addressing what privacy and freedoms should mean in the 21st century. Justice has just published an excellent new publication Freedom from Suspicion - Surveillance Reform for a Digital Age, which highlights the fact that we have moved into a new era that existing legislation is not able to cope with. It did not anticipate the rapidity of technological advance, which is enormous. The scale of technological capability is beyond anything that was imagined, even when the Regulation of Investigatory Powers Bill was drafted.

In common with all noble Lords, I can remember when opening someone's post without proper authorisation was a serious offence, yet in the internet age, popping in to their IP address and having a look at what they are up to is not taken as seriously as it should be. An example is that, legislatively, RIPA offered protection when, in 2006, BT and Phorm decided to run a secret trial of marketing software that intercepted the private internet sessions of thousands of customers. It was illegal, but the CPS took no action. That set a very bad precedent that ignoring RIPA is not serious.

In April this year, the Information Commissioner said:

“RIPA was drafted for the wiretap age”.

The Law Society’s comments are similar. In its written evidence to the House of Commons Public Bill Committee on this Bill, it stated that RIPA is,

“a confused and complex legislative framework for surveillance, along with equally complex and overlapping oversight arrangements”.

Other examples of the technologies give us an idea of the complexity. The Guardian has highlighted that the Metropolitan Police are operating covert surveillance technology with a signal that shuts off mobile phones remotely, intercepts communications and gathers data about thousands of users in a targeted area. That has big implications for the right to protest and freedom of expression. The Met has also purchased software to map digital movements using data gathered from social networking sites, sat-nav equipment, mobile phones, financial transactions and IP network logs.

How should this be regulated? Clause 37 gives the Secretary of State welcome power by order to require judicial authorisation for targeted surveillance authorisations by other public bodies, but I would like us to debate in Committee an amendment providing that prior judicial authorisation would be an integral part of the whole system. Such authorisation would have picked up the disgraceful, long-term and costly surveillance operations undertaken by the police on peaceful environmental movements.

How do we as parliamentarians assure ourselves that such capability is being used in the right way? We have the commissioners—my noble friend Lady Hamwee mentioned that we do not have a collective noun for a group of commissioners—and the Bill adds two new ones: the Surveillance Camera Commissioner and the Commissioner for Retention and Use of Biometric Material. The problem is that the commissioners have different roles and areas of responsibility that have been built up in a very piecemeal way. There are not overlaps but there are gaps in responsibilities. I would like to explore whether we would be better served by one privacy commissioner with an overarching role. We know that the Chief Surveillance Commissioner has quite limited powers. His function is just to keep under review the operation of the powers and duties of directed and covert surveillance. The Interception of Communications Commissioner’s role is limited to the oversight of those who issue warrants and the procedures of those acting under warrants. He has no power to investigate complaints or to advise the public.

The best model—the Information Commissioner—is responsible for promoting and enforcing compliance with the Data Protection Act 1998. It is this role of advising the public that is really important. Citizens need an independent powerful figure—who is outward-facing to them, as well as inward-facing to the authorities operating under the various legislative frameworks including RIPA. We have a lot of work to do in this Bill just to keep up with the capabilities of the technology. I welcome a debate on how to do that.

I particularly welcome the repeal of Section 44 of the Terrorism Act 2000: “stop and search”. It is very welcome indeed. I also welcome proposals that will see the destruction of the DNA samples of those arrested and charged with a minor offence but never convicted. I am, however, very disappointed that the position of children arrested or charged but never convicted of serious offences is unchanged. We need to examine that closely in this House. Finally, I am disappointed that there is no amendment to the Criminal Justice and Public Order Act 1994 so that it recognises peaceful protest as a fundamental part of democracy. It leaves in place the “aggravated trespass” offence. That was recently employed, for example, against all the individuals who were peacefully protesting with UK Uncut at Fortnum & Mason earlier this year in March. That use of “aggravated trespass” is an affront to the concept of peaceful protest.