Facial Recognition: Police Use

Debate between John Whittingdale and David Davis

Wednesday 13th November 2024 Westminster Hall

[Sir John Whittingdale]

I certainly agree that more assurances need to be given. That is actually one of the purposes behind requesting this debate. The hon. Lady is right that concerns have been expressed—

[David Davis (Goole and Pocklington) (Con)]

I agree with the hon. Member for Liverpool Riverside (Kim Johnson), but it goes deeper than that. There are at least three conditions that ought to apply, and I would be interested to hear from my right hon. Friend the Member for Maldon (Sir John Whittingdale) whether Essex met them. First, these things always ought to be under judicial oversight; it should not simply be a police decision. Secondly, as he said, only the records of presumed guilty or actively sought people should be kept and, thirdly, that innocent people’s records should be destroyed straightaway. That should not be left to a guideline; it should be under legislative control and properly treated in that way.

[Sir John Whittingdale]

I agree with my right hon. Friend. The problem at the moment is that we do not even have national guidelines. There is a complete absence, which I will come to later. I will give way to the shadow Home Secretary.

--- Later in debate ---

[Sir John Whittingdale]

The hon. Lady is completely right. I think the police are generally being responsible in its use and setting the threshold as recommended, but that is another example where there is no requirement on them to do so, and they could lower it. Regarding deployment in Essex, the chief constable told me there was just one false positive.

I attended a meeting with Baroness Chakrabarti, along with my right hon. Friend the Member for Goole and Pocklington, where Shaun Thompson, an anti-knife community worker, spoke to us. He had been held by the police for 30 minutes and forced to provide all sorts of identity documents, as a result of a false positive. On the extent to which it is occurring and whether racial bias is involved, there is some evidence that that is the case. That makes it all the more important that we provide assurances.

We have heard from several campaign organisations that are concerned about the use. They vary in the extent to which they believe it is a legitimate technology. Big Brother Watch has described live facial recognition technology as

“constant generalised surveillance”

and has said that it is

“indiscriminately subjecting members of the public to mass identity checks”

which undermines the presumption of innocence.

Liberty has gone further, saying:

“Creating law to govern police and private company use…will not solve the human rights concerns or the tech’s inbuilt discrimination…The only solution is to ban it.”

I do not agree with that, because I think there is clear evidence that it has a real benefit in helping the police apprehend people who are wanted for serious offences, but one of my major concerns is the lack of any clarity in law about how it should be used.

I am grateful to the Library, which has provided advice on that point. It says:

“There is no dedicated legislation in the UK on the use of facial recognition technologies.”

Instead, its use is governed by common law and by an interpretation of the Police and Criminal Evidence Act 1984, although that Act does not mention live facial recognition technology, and some case law, such as the Bridges case. Even in the Bridges case, the Court of Appeal found that

“The current policies do not sufficiently set out the terms on which discretionary powers can be exercised by the police and for that reason do not have the necessary quality of law.”

[David Davis]

On precisely that point, some police forces in the UK take the view that GDPR has reach in this area. Does my right hon. Friend have a view on that?

[Sir John Whittingdale]

My right hon. Friend has anticipated my next point extremely effectively. I was Minister at the time of the passage of the Data Protection and Digital Information Bill, which did not cover live facial recognition technology. At the same time, my right hon. Friend the Member for Croydon South (Chris Philp), who is the shadow Home Secretary, was the Minister for Policing and he made a speech about how valuable live facial recognition technology was. I therefore sought advice about how that fitted in with GDPR.

The advice that came back following consultation with the Information Commissioner’s Office was that there is no blanket approval by the ICO for the use of LFR technology. Essentially, it should be judged on a case-by-case basis, but the ICO had expectations that data protection and privacy should be respected. It went on to say that the use of LFR can be highly intrusive and future uses of the technology may require updates, but that the ICO is monitoring it closely. That is only partially reassuring. Essentially, the ICO recognises that breaches of data protection could be possible, and is monitoring it, but there is no clear guideline to assist the police or anybody else with precisely how it should be used.

I am grateful to legal consultants Handley Gill, who wrote to me yesterday and who are involved in advising a number of people about the legality of the technology. They said that

“it is undesirable for individual Chief Officers and PCCs to have to engage in the wide ranging review and preparation of the necessary documentation, and that a move toward a common national approach (and choice of technology provider) would secure efficiencies and also enable closer monitoring…to ensure their efficacy and lawfulness.”

Although we are no longer bound by European Union law, the EU has brought in much more stringent controls than exist here.