Protection of Freedoms Bill

Baroness Stowell of Beeston Excerpts

Tuesday 13th December 2011 Grand Committee

[Lord Lucas]

My Lords, the amendments in this group are intended to ask a short trio of questions about how line 36, which is about the admissibility of evidence, will work. First, I want to be sure that it covers civil as well as criminal proceedings because an awful lot of surveillance camera evidence is used in, for instance, parking ticket or traffic enforcement, which are civil proceedings. It is important that if there are rules and regulations being passed about how these cameras should be used, they and the guidance should be equally effective in dealing with traffic enforcement as in dealing with a mugging.

Secondly, if one goes by not general, but certainly frequent, local authority practice, local authorities will rely in civil cases on the fact that most people do not appeal, so the case never comes to court. People pay their fines. Knowing that whenever a particular breach of the code comes to the tribunal the local authorities lose their case, they will none the less continue enforcing because they are losing only 1 or 2 per cent of revenue and the rest of the people are paying up as usual. What the guidance in the code is supposed to do is nullified by the fact that there is no mechanism for spreading the opinion of the tribunal more widely than the individual cases which reach it.

Amendment 104 is intended to propose such a mechanism so that a tribunal can say, “No, you have to stop this. We have seen this five times already and each time we have found for the appellant. You must cease enforcing until you have put this right. We will not allow you to issue any more tickets on the basis of something which we consider to be an unreasonable breach of the code”. The other end of it is that where a tribunal has found a local authority to be in frequent breach of the code and has on each occasion found for the appellant, none the less the local authority will have extracted a very large amount of money out of other people who have not appealed because there is a very substantial disincentive to appeal. If you lose an appeal, you double your fine. There is also a large amount of time taken up in the process of appeal.

I would like to see some mechanism where a tribunal can say to a local authority, in particular, or to other people who are seeking to use camera evidence as the basis of fines, that they must repay not only the appellant but all the other people on whom penalties have been imposed on the basis of the practice that the tribunal disapproves of. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend for explaining and introducing his amendments. I recognise that he is focusing on the specific use of surveillance camera technology, particularly in its use for enforcement of parking and traffic regulations. It is probably worth me pointing out for the benefit of the Committee that the surveillance camera code of practice is not intended to include any speed camera technology. I know that my noble friend—

[Lord Lucas]

My Lords, I am not talking at all about speed camera technology.

[Baroness Stowell of Beeston]

My Lords, I was just about to say to my noble friend that I know that he was not talking about speed camera technology at all. It was just for the benefit of the rest of the Committee. I thought it was an appropriate point for me to make that clear, in case anybody else might not be as clear as my noble friend is on this matter.

I refer first to my noble friend’s Amendment 103, which, as he has explained, seeks to clarify the drafting of Clause 33(3). I believe that the meaning of that subsection is already clear, as “such proceedings” unambiguously refers back to “criminal or civil proceedings” in subsection (2); we simply do not need to repeat those words in subsection (3).

My noble friend’s Amendment 104 suggests that this Bill takes away the right to seek redress where a court has ruled that the code of practice has been breached. We believe this would have significant implications for litigants. In the context of civil proceedings—just to be clear, for example, we might be talking here of someone seeking to enforce the payment of parking charges—a claimant should be able to present all relevant evidence in support of his or her case. Given that the surveillance code of practice will set out guidance rather than rigid requirements for the operation of surveillance camera systems, it would in our view be disproportionate to prevent, as a matter of course, CCTV evidence being presented where a court or tribunal has ruled that there has been a breach of the code.

Clause 33(4) makes it clear that the court should have discretion in taking into account a failure by a relevant authority to have regard to the surveillance camera code in determining a question in any such proceedings. In the context of criminal proceedings, the ramifications of the amendment in terms of the overall fairness of the process are potentially more significant. The effect of the amendment might be to exclude key prosecution evidence or evidence that might exonerate the accused. Our general approach, as I have already explained, should be to leave decisions about the admissibility of CCTV evidence to the court or tribunal in question.

--- Later in debate ---

[Lord Lucas]

My Lords, I am very grateful to my noble friend for that answer, particularly the sudden inspiration which struck her at the end and which gave me great comfort so far as Amendments 104 and 105 are concerned, which I agree were pushing it a bit. However, I still have concerns on Amendment 103.

I agree that Clause 33(3) refers back to Clause 33(2), but the latter refers to the acts of people who are running surveillance cameras, not to the acts of people who are caught on surveillance cameras. It is not clear to me that the inference that she suggested should be imported into Clause 33(3)—that the civil and criminal proceedings in Clause 33(2) apply—is justifiable, given that they refer to completely different sets of court cases. One is cases taken against people who are using cameras and the other is cases against people who are caught on camera. I should be very grateful if the Minister could write to me to answer that point in detail if she does not have an answer in front of her now.

[Baroness Stowell of Beeston]

My Lords, I would be very happy to take away the points that my noble friend has raised and will, of course, write to him in due course.

[Lord Lucas]

My Lords, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Tunnicliffe]

My Lords, the dilemma in front of us is basically to do with the application of CCTV, its value and the safeguards related to its value. I have peculiar experience of this, having headed up an organisation which had probably one of the largest CCTV installations in the UK. I have to say it was introduced before anybody thought about any sort of code, and we built up practice. Our experience was that the benefits massively outweighed the disadvantages. Our other experience was that acceptance by the general public simply grew with time. In London, people are used to CCTV on transport systems, in public spaces and so on. We think that the benefits are enormous.

We are not against the general concept of introducing a code, but we have all made it clear that we think the way this code is being introduced is wrong. The right thing to do is to have an inquiry to understand the extent of the problem, to start working up criteria and so on. However, if the Government insist on introducing this code more rapidly than that, we would be against its extension to all publicly funded areas and to schools and colleges. This is not because we are against extension of the code—as has been rightly pointed out, there are many privately owned CCTV cameras that could sensibly fall within a comprehensive code. What we are against is the extension of that code until the right amount of experience has been gained and investigation has taken place. Otherwise, these crucial areas, particularly schools and colleges, where CCTV is so valuable, will be burdened with a bureaucratic nightmare until we achieve a code that gets the right balance of being bureaucratically light while achieving the effective objectives of public engagement and acceptance. Therefore, in this Bill at this time we do not support these amendments.

[Baroness Stowell of Beeston]

My Lords, I shall start by picking up where the noble Lord, Lord Tunnicliffe, left off, and by making the point that there is a lot of support for CCTV in this country. As my noble friend has already made clear today, the Government are certainly not in any way trying to restrict the use of CCTV through the introduction of this Bill. We are trying to introduce a code so that the use of CCTV is clear, and that where it is used the public have clarity in their understanding of its purpose.

I shall address, first, my noble friend’s Amendment 107, which proposes extending the code to all public bodies in receipt of money provided by Parliament. Given the incremental approach that we are adopting, we are not persuaded that the duty to have regard to the code should apply more widely than to local authorities and the police from the outset. All operators of public space CCTV are subject to the requirements of the Data Protection Act. We see local authorities and the police as the operators of publicly owned CCTV systems in public space, and as the bodies who are well placed to set the example for standards of operation. They frequently work in partnership with other CCTV operators and we see their behaviour as a powerful driver for positive change elsewhere.

To place a duty to have regard to the code on every publicly funded body from the outset would be premature. We should see how the code beds in and, drawing on the advice from the Surveillance Camera Commissioner, consider in due course whether the duty should be extended and, if so, to which bodies. Clause 33 contains a provision to enable the duty to have regard to the code of practice to be extended to other bodies by means of secondary legislation, so we do not need to settle this question now. We will not hesitate to make use of this provision if we deem it necessary and beneficial. Any order made to this end will be subject to the affirmative resolution procedure, and so will need to be debated and approved by both Houses.

At this point, I should refer to the question asked by my noble friend Lord Phillips about the period of review of the code. Subject to any further advice that I receive, I refer him to Clause 35, which refers to reports by the commissioner. Subsection (2)(b) makes it clear that the commissioner will be required to report every 12 months. On that basis, I suspect that any advice or proposals that he might want to make about the extension of the code would therefore be covered in his reports.

I turn now to my noble friend’s Amendment 109, which refers explicitly to educational establishments—schools, colleges and universities. I accept that the use of CCTV in schools and colleges is a potentially emotive issue for a variety of reasons. Some of the examples that my noble friend outlined certainly illustrate that point most clearly. As with any other establishment, we would expect any decision to install CCTV in an educational establishment to be very carefully considered, and the reasons for so doing tightly defined. The new code is intended to assist with these considerations. While we are not proposing that schools be covered by the code at the outset, it is there for all organisations that wish to install CCTV to use and be guided by in determining the purpose of that CCTV, precisely as the noble Baroness says. It is very important that, if a school introduces cameras, it should be clear about why it is choosing to do that.

The public consultation that we carried out earlier this year received over 100 responses, which are available on the Home Office website. Analysis of the responses received found that comments on the use of CCTV in schools were minimal. While there were some respondents who argued that the code should be made mandatory for all operators, none put forward a specific case for compliance with the code to be made mandatory for schools. Similarly, in relation to the amendment of my noble friend Lady Randerson regarding higher education institutions, there were no calls in the public consultation relating to universities or further education colleges and there are no specific concerns that we are aware of.

I assure your Lordships that the detail of the code will be developed in consultation with interested parties and, as part of that dialogue, we will consider whether any issues associated with surveillance camera systems within schools or healthcare settings require specific reference within it. When using CCTV on their premises, schools, colleges, universities and indeed all public bodies—including government departments—must adhere to the requirements in the Data Protection Act. Noble Lords will be well aware of the existing powers of the Information Commissioner to enforce compliance through a regulatory action policy.

There are therefore already safeguards in place for the privacy of students and the wider public. We trust the proprietors of schools, colleges and universities and their heads of institution to comply with those requirements, and for schools, where appropriate, to consult with parents on any deployment of CCTV.

I hope that by giving the assurance that we recognise the importance and value of CCTV; by outlining that the introduction of the code is to provide some clarity in terms of its use; and by explaining that there is an option to extend the code beyond the relevant authorities outlined already in the Bill but that we will not do so prematurely, I have addressed all the points that have been raised by noble Lords in the debate today. I hope my noble friend will feel able to withdraw her amendment.

[Baroness Randerson]

I thank my noble friend for that answer. I realise that every organisation concerned is subject to the Data Protection Act, but the point about the code is that one prevents the kind of problems to which I referred; one prevents breaches of the Data Protection Act by encouraging public bodies to follow good practice, behaviour and procedures.

I ask the Minister to give further consideration to the issue of schools and educational institutions. She referred to the lack of response in the consultation on the issues associated with schools, but perhaps the Government may consider that in many people’s minds when they talk about local authorities, they encompass schools as well. However, in the modern world that is less and less so.

It is clear from the legislation that the Government are not including schools at this stage but I would ask them to give further consideration to the matter. I beg leave to withdraw the amendment.