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

Baroness Smith of Basildon Excerpts

Tuesday 30th July 2013 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Baroness for her explanation. I should point out that I am only “Lady Basildon” on Twitter; it is usually Smith, but I am pleased to have the Minister as a follower on Twitter. There are two orders before us today, but she has rightly addressed the one that I raised concerns about. We raised and discussed the other one, about the national security determinations relating to DNA and biometric information, in Committee.

The Minister is quite right that the order which I am speaking about, the Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013, was debated in Committee. I am sorry—I say this with regret and not as a criticism—that the noble Lord, Lord Taylor of Holbeach, is not here today; not because we are not pleased to see the noble Baroness, but because we discussed this in Committee. I said to him on 7 July that if I remained dissatisfied with the answers to our queries and concerns, then we would look to debate it on the Floor of the House. The noble Lord helpfully wrote to me, seeking to address those concerns, but some remain, which is why we are debating this again today,

As pleased as we are to see the noble Baroness, we therefore regret that the noble Lord is not able to be here today. However, no doubt the noble Baroness will have read the debate, will have seen the letter that the noble Lord, Lord Taylor of Holbeach, sent me, and will be aware of the concerns that I raised. She sought to air them today, but I regret that in her short comments she was unable to do so. I do not want to repeat the Committee debate—that would be unwelcome at this time on the last day of term—but I will summarise the concerns and explain why we remain concerned. I hope that the noble Baroness will be able to give further information and might seek to address some of the points that have been raised and not fully answered.

The Secondary Legislation Scrutiny Committee made the point that the Government needed to justify how the benefits offset additional bureaucracy, and the wider application of the code. Those two issues stand together. There is significant increased bureaucracy and cost for local authorities and the police, as I outlined previously. This is addressed in the impact assessment. In Committee and in his letter to me, the noble Lord addressed this. He said in his letter that the Local Government Association agreed that it was difficult to assess the costs involved. He then added that it was around £1.6 million each and every year, although given the information on the impact assessment, this is a conservative estimate and could be much higher. The impact assessment suggests that is the best estimate and that it could be as high as £3 million each and every year, and that the best estimate for the one-off transition costs is over £14 million and could be as high as £29 million.

In his letter the noble Lord also stated that the best estimate values had been shared between 350 local authorities and 46 police authorities. However, as both the letter of the noble Lord, Lord Taylor, and the impact assessment make clear, the impact assessment assumes that,

“many of the local authorities and police forces … are already operating broadly within its”—

that is, the code’s—

“guiding principles where they relate to existing obligations. Thus the additional burdens and bureaucracy are likely to fall where systems and the accountability for decision-making need to be strengthened to protect the public”.

That implies to me that the conservative estimate of £1.6 million annually and the additional £14 million transition costs are not being shared across all local authorities and police forces because when the costs in the impact assessment were estimated it was done on the basis that many—I think it was 25% to 50%—would not incur any additional costs.

A further difficulty which was raised in Committee but has not been addressed is that this order applies only to the public and not the private sector. The Explanatory Memorandum quotes the policy background and refers to the advantages of CCTV. It also refers to the disadvantages, including,

“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”.

The order is therefore being promoted as a protection of civil liberties against the power of individuals, organisations and the state. However, it does not apply to individuals, organisations and the state; it applies only to the state and public institutions. So if these guidelines are so essential to protect civil liberties, why does the policy giving effect to the Government’s principles outlined so boldly in the Explanatory Memorandum only apply to the public sector? Can the noble Baroness tell me what percentage of CCTV cameras the order covers? I know that previously the Minister said that this was because they were in a public place, but so are shopping centres; shop and office cameras look onto the street. Do the same principles apply to those CCTV cameras as to the ones that police and local authorities use? If I am to believe what I see on “Law and Order UK” and other detective programmes on TV, the police often ask for access to the information on these private CCTV cameras to collate evidence of criminal activities. So, in many cases, the use of those cameras and the people they film are identical.

The Government have made much of leaner, slimmer government and fewer regulations—they want to cut quangos—and yet here we have not only a new commissioner but significant additional regulations for local government and the police. I understood that the Government policy was that for each new regulation that was brought in, two would be jettisoned as the overall burden, as the Government call it, of regulation was reduced. I think that is a poor way to make policy. There are serious issues around regulation; it is not a numbers game. In his comments to the Committee, the Minister said that, in terms of bureaucracy and regulations, the rule of “one in and two out” does not apply to the public sector, only to business. That is a new one on me. I had not realised that the Government’s commitment to reducing bureaucracy, as they call it, was qualified. Given that this involves taxpayers’ and council taxpayers’ money, can the Minister tell me why the Government exclude the public sector in this regard?

A second point I have raised before and on which I am still not clear—perhaps the noble Baroness can help me—is that when I raised the issue of compliance with the principles the Minister’s response was that the legislation to establish the new Surveillance Camera Commissioner limited the commissioner’s role to encouraging compliance and that the legislation provided no enforcement powers even though it was the Government’s legislation. At an annual cost of £250,000, the Government are therefore setting up a commissioner to encourage local authorities and the police to comply with the new regulations, which will not apply to the private sector. However, although there is a statutory duty, there is no way that this commissioner, at a cost of £250,000—a quarter of a million—can enforce the regulations.

When I raised this in Grand Committee, the Minister sought to give me some assurances, but his answers gave me more cause for concern. To my question about enforcement he responded:

“Local authorities and the police will be under a duty to have regard to the code when exercising their functions…When a local authority or police force fails to do so, it will be vulnerable to judicial review for a breach of that statutory duty. The possibility of being subject to such a legal challenge will incentivise local authorities and the police to adhere to that statutory duty”.—[Official Report, 17/7/13; col. GC293.]

There are 12 guiding principles within the code, seven of which are considered not to have any cost. Each one of those places an additional bureaucratic obligation on the police and local authority. Therefore, non-compliance with any of those 12 criteria or principles opens up the possibility of a judicial review, and judicial reviews do not come cheap. This statutory instrument allows for any public sector CCTV installation to be subject to a judicial review. I am not sure if the noble Baroness is aware of this, but local authorities are understandably becoming more risk-averse whenever there is a possibility of legal action or judicial review because they fear the costs. Experience tells us that the threat of a judicial review can lead local authorities to avoid decisions that can lead to a JR, even when they are likely to win, just because of the huge costs that are involved.

The Government themselves recognise this problem. They say they want to reduce the number of judicial reviews. The Justice Secretary, Chris Grayling, claimed that:

“The system is becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them”.

The Government’s policy is to reduce the number of judicial reviews, but the Home Office policy is to give 12 grounds on which any CCTV application can be challenged by judicial review. I am really not comfortable with the threat of a JR being the only effective means of enforcement. I fear that the policy may well have the opposite effect to that which the Government intend by reducing the number of CCTV cameras, as councils seek to avoid risk.

We come back to the basic question that was asked in Committee, and I am still not clear on the answer: is this necessary? The impact assessment states that many of these bodies—local authorities and police—are already employing and using those guiding principles. The point was made by the noble Earl, Lord Erroll, who is in his place today, when he said in Committee that,

“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?”.—[Official Report, 17/7/13; col. GC286.]

The noble Lord’s letter to me also refers to the Information Commissioner’s role in CCTV. There is a lack of clarity here. The judicial review only refers to the 12 principles; if there is a role for the Information Commissioner and for judicial review, which could be from either the camera commissioner or a member of the public, could there be a case where there are two actions against the local authority or the police, one via judicial review and one via the Information Commissioner?

I am certainly not against oversight. We support oversight, but I come back to the first point I made, and the point made by ourselves and the noble Earl, Lord Erroll, in Committee, and by the Secondary Legislation Scrutiny Committee: do the benefits justify the costs, or are there other ways in which this can be achieved?

I urge the noble Baroness to take this back and please think again. I am sure that we all want to avoid unnecessary burdens and unintended consequences, but I fear that this order could achieve both.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Baroness, Lady Smith of Basildon. My apologies for using her Twitter moniker in the Chamber; I will avoid doing that again.

During the passage of the Protection of Freedoms Act, Parliament debated and agreed the function of the commissioner and the scope and nature of the CCTV code of practice in so far as it applies only to the police, local authorities and other designated bodies. As we made clear then, the Government believe that the CCTV code will ensure that CCTV is deployed and used transparently, proportionately, and effectively. We want the police and local authorities to use CCTV to help cut crime. During our consultation, we received widespread support for it: 80% of respondents supported it. The Information Commissioner was also positive in his response, as was ACPO.

It might be worth me reading out a brief quote from ACPO’s response to the consultation on this code. ACPO said that the code,

“will help to bring in a consistent approach to dealing with the use of surveillance cameras. The use of twelve guiding principles sets out the Code in a straightforward way, which can be easily understood and implemented. The focus on transparency, access to and the security of images, as well as operational, technical and competency standards, making systems available to the police and the encouragement of the use of surveillance cameras as a forensic process, are all important facets of the proposed Code”.

The Government believe that it is an important step in ensuring the right balance between the rights of the public and the pressing need to fight crime.

The noble Baroness asked why the code covers only public authorities such as the police and local authorities, and some other enforcement agencies that are listed in the order. The list of relevant authorities is set out in the Protection of Freedoms Act, which was debated and approved by Parliament. Therefore, Parliament agreed that the project should begin on a limited basis, effectively covering local authorities and the police. The fact that it is limited in this way does not arise out of this order or the code of practice, but was in the original Act that was passed by Parliament. The code will be mandatory for only a relatively small proportion of CCTV cameras but we believe that it is right and proportionate for others to be encouraged to adopt the code because it is in their interests rather than to be obliged to at this stage.

The noble Baroness asked what proportion of CCTV cameras will be covered by the code. Although it will be small to start with, because it will be limited to the police and local authorities, the Government believe that all cameras operating in the public space owned by public bodies should be used openly, transparently and effectively, in line with the code. The Surveillance Camera Commissioner will review the implementation of the code, including its take-up by private bodies, and report to the Home Secretary and Parliament in 2015. Indeed, we expect the police and local authorities to be able to demonstrate the benefits of the code and to help raise awareness of it among those who would voluntarily adopt it.

The noble Baroness asked about costs. The Government believe that the costs of implementing the code are minimal. As she said, the costs cited in the impact assessment are estimated at £1.6 million per year across 350 local authorities; in other words, about £20,000 per year per local authority and £23,000 per year per police force. These costs are minimal in comparison to the budgets of these bodies. They are also average costs and will vary depending on the size and nature of the locality. The noble Baroness asked about how costs might vary from force to force and authority to authority. I do not have those details at this time but, as the impact assessment makes clear, we have based the costs per authority and per force on an average that has been acknowledged by the LGA.

We think that these modest costs are worth while in terms of the expected benefits that they will bring of better quality images to help investigate crime and bring criminals to justice, and greater public confidence. It might be worth me referring to a recent incident to do with the use of automatic number plate recognition in Royston in order to illustrate the benefits of the code and how the relationship between the Information Commissioner and the new Surveillance Camera Commissioner might work. Earlier this month, the Information Commissioner issued an enforcement notice against Hertfordshire Constabulary and its use of automatic number plate recognition. The ICO has ordered the force to review its use of ANPR cameras around Royston. It says that it has created a ring of steel that means no one can drive their car in or out without a record being kept. Although this predates this code, the Surveillance Camera Code of Practice will provide guidance for the police and others and enable the public to hold them directly to account for the proportionality and effectiveness of ANPR and CCTV. We understand that in this example Hertfordshire Constabulary will be working closely with the ICO to ensure that any future deployment of ANPR in and around Royston is proportionate in meeting a clearly stated and justified purpose.

[Baroness Smith of Basildon]

The Minister has raised a very interesting point, but I think she clarified herself when she said what is happening in a relationship between the Information Commissioner and the police. That is happening now, before this order comes into force, so is the order necessary?

[Baroness Stowell of Beeston]

Yes, the order is necessary. The reason I used that example to illustrate the point is that the Information Commissioner retains all his enforcement responsibilities regarding the Data Protection Act, both in respect of ANPR and CCTV. The point I was going to make is that the relationship between the Surveillance Camera Commissioner and the Information Commissioner has been set out in a memorandum of understanding. If there were any issue around enforcement in the use of data protection, which was the example that I gave from Royston, then enforcement would remain the responsibility of the ICO.

The purpose of this code is to go further than enforcement. It is about ensuring that CCTV cameras, which make an important contribution to helping to cut crime, are used in the most effective way. It is about ensuring that the public can have confidence in the way in which cameras are deployed and can see that, in times of reduced budgets and competing priorities, each police force uses this very expensive equipment in the most effective way that it can.

The noble Baroness raised points about enforcement and judicial review. In terms of enforcement, the Information Commissioner retains his responsibility. The code itself is self-regulating. We did not want to bring in this code and introduce additional burdens unnecessarily on local authorities or on police forces. We wanted the code to ensure good practice and that the best use possible was made of CCTV. The Surveillance Camera Commissioner will be required to provide an annual report to the Home Office and that will be laid before Parliament. He will be able, through his transparent way of monitoring performance, to report to the public on how this equipment is being used.

Judicial review will operate in the same way as in any other context. A judicial review can be brought only by an individual who is directly affected by the public authority’s actions or decisions in relation to CCTV or by an interest group representing such individuals. The Protection of Freedoms Act makes no reference to the commissioner initiating legal challenges against public authorities and therefore this will not form part of the commissioner’s function or role.

As I said at the beginning, the purpose of this code is to strike the right balance between protecting the public and upholding civil liberties. We believe that it will help to ensure that the purpose of CCTV is clear to the public and that it will help to deliver the results that they have every right to expect.