Protection of Freedoms Bill

Lord Rosser Excerpts

Tuesday 13th December 2011 Grand Committee

[The Deputy Chairman of Committees (Lord Haskel)]

I have to tell your Lordships that, if Amendment 85 is agreed, I cannot call Amendments 86 to 88 because of pre-emption.

[Lord Rosser]

My Lords, we have four amendments in this group: Amendments 86, 89, 93 and 96. Amendments 86, 89 and 93 would simplify requirements for consent for the processing of biometric information. In particular, Amendment 86 would establish an opt-out rather than an opt-in system and remove the requirement for both parents to consent; instead, it would require notification from just one parent to withdraw consent. Amendments 86 and 89 remove the current provision allowing children of any age to override parental consent, and instead permit only children above the age of 16 to object. Amendment 93 makes consequential changes to requirements for parental consent while—although I will leave this to the end—Amendment 96 establishes a new duty upon schools to consult the views of teachers, parents and pupils before introducing biometric recognition systems into schools.

Our amendments in this group, as I have said, seek to simplify requirements around consent for schools and to prevent new rules from rendering costly, high-tech equipment in schools defunct. There are apparently no official figures on how many schools use biometric systems, but there are estimates. There was an estimate in a House of Commons Library note earlier this year that 30 per cent of secondary schools and 5 per cent of primary schools use them. Perhaps the Minister could tell us what he thinks the figures are.

The Home Secretary’s description of the Bill's provisions as a double lock on the processing of biometric information in schools is a tellingly accurate reflection of the regulatory bulwark that schools will in future come up against in order to use existing biometric processing systems. By requiring both parents of every child to provide written consent, the Government are creating a potential bureaucratic nightmare for schools that use these systems. In the words of the Association of School and College Leaders:

“What is proposed here is a very burdensome and bureaucratic new regulation that will address no significant problem. In short, it is exactly the kind of legislation that the present government promised to repeal, not enact”.

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[Lord Henley]

My Lords, my noble friend Lady Hamwee suggested that I should not talk about feed-in tariffs and solar panels, and I am tempted to follow her suggestion on that. I used to speak a great deal on those issues in my previous job, but I do not often do so now that I am in the Home Office. I am not sure that they are quite relevant to this debate. Possibly we ought to have a new award for relevance in amendments—we could call it the Lord Rosser award for relevance—and I could congratulate the noble Lord on winning the award on this occasion for bringing in feed-in tariffs and solar panels.

[Lord Rosser]

I am sorry if the Minister could not understand the point, but I quoted from one of the leading providers of this technology in schools who said that there had not been proper consultation or clear thinking about the consequences of the new policy. My point was that that lack of proper consultation or clear thinking about the consequences of a new policy seems to have become a feature of this Government, because that is precisely what happened with the new feed-in tariffs. I am sorry if the Minister cannot understand the relationship between the two.

[Lord Henley]

My Lords, as regards consultation, we consult till the cows come home in this department and every other department, and I am distinctly happy about the amount of consultation that has taken place on this issue. We will move on now from feed-in tariffs and solar panels and get on to the gist of the amendment.

My noble friend Lord Lucas is obviously not completely convinced that there is a need for parental consent at all, but accepts that he could be persuaded as long as, as I understand him, it is not overburdensome. That point is probably behind the amendments from the noble Lord, Lord Rosser, and others. By the way, the noble Lord, Lord Rosser, did ask in passing for confirmation of the figures he used, and I can confirm, if I heard them correctly, that he is broadly right. Our figures are that some 30 per cent of secondary schools and some 5 per cent of primary schools are making some use of biometric systems for dealing with matters which, again one ought to stress, are largely related to access to school dinners, libraries and that sort of thing—so not major matters that affect them in other ways.

My noble friend obviously needs a degree of persuading about these matters. It is probably best if I go through the amendments in the appropriate order. I will deal with them in an order that I will take rather than as they are set out, but possibly I will leave Amendment 85, the first of my noble friend’s amendments, which even he described as being garbled; it is possibly best if I say little about that. I think my noble friend will understand why I take these a little out of order. I will start with Amendment 88.

Amendment 88 would have three consequences. First, it would obviously narrow the definition of who is a parent for the purposes of these provisions. Secondly, it would change the scope of the requirement for consent in that only one parent will need to consent. Thirdly, it seeks to introduce legal protection for schools and colleges where a child’s biometric information is processed beyond the control of that school or college. I will begin by addressing the first and third effects of that amendment.

For the purposes of these clauses, a parent means the child’s mother, father or any other individual who has parental responsibility for the child. Where it is not possible to obtain consent from any such persons, the parent is the person who cares for the child, unless the child is accommodated by a local authority or some voluntary organisation, in which case consent will be needed from that authority. My noble friend’s amendments obviously narrow this definition to include only individuals with parental responsibility. This would mean that, where there is no individual with parental responsibility who is able to consent, a school or college would be able to process a child’s biometric information without any person providing consent. I am sure that is not my noble friend’s intention, and he would probably want to adjust his amendment if he comes back to it—and I see my noble friend nod. The Government believe that all children, whatever their care arrangements, deserve the same level of protection in relation to the use of their personal information by a school or college. That is why we believe it is right that the definition of a parent goes wider than that suggested by my noble friend. Again I see my noble friend nod, and if he wants to come back to that he will no doubt amend his amendment.

The third element of this amendment seeks to provide protection for schools and colleges where a child’s data are processed outside of the control of the school or college. I know that my noble friend is concerned that these provisions should not apply when pupils access commercial websites or software systems that use face recognition to control access. I can give reassurance to my noble friend that the provisions in Clause 26 cover only the processing of biometric information that is carried out by, or on behalf of, the school or college.

Let me move on from Amendment 88 to the alternative approaches suggested by my noble friend in Amendments 85 and 87. It is also appropriate to consider here Amendments 86 and 89, from the noble Lord, Lord Rosser, which address a similar point and which I think my noble friend said he possibly preferred to his own. All those amendments seek to adopt a different approach to consent. At their most radical, they seek to replace the opt-in arrangement provided for in the Bill with an opt-out process. As a variant of this, they seek to provide for consent to be given by a single parent. Given the sensitive nature of the data involved, a positive decision should be made by both parents. This approach would afford them the opportunity to act on any concerns that they may have about the use of their child’s biometric information. In the vast majority of cases I would expect parents to discuss the issues between themselves and reach some agreement. As those of us who are parents will know, that is not always necessarily possible but, in the main, parents can reach that conclusion among themselves.

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[Lord Henley]

I accept that there can be a problem with inertia. It is what one might refer to as the “cheque is in the post” syndrome. People say that they are doing things and they do not. I suspect that we have got it right, but I am more than happy to have a further look at this if the noble Lord thinks that there will be concern over that. But this is something that schools are already doing a great deal about in terms of consulting or talking to their parents, and it is something that schools are used to. But perhaps we could talk about that at some later stage or between now and another stage.

[Lord Rosser]

The Minister has raised a number of issues, but could he confirm that under the Government’s proposals a child of five could say no, even though the parents had said yes, and it would be the view of the child of five that prevailed? If a 15 year-old agrees and one parent says no and one says yes, will the Government then seek to uphold the right of the 15 year-old? Also, he said that under my proposal the 15 year-old would be dragged kicking and screaming. Could he just confirm that school teachers are not allowed to use force against pupils, or has the government policy changed?

[Lord Henley]

Government policy has not changed, and the noble Lord will accept that the words I was using were metaphorical.

[Lord Rosser]

Careless.

[Lord Henley]

Careless words they may be, as the noble Lord is saying, but I will go on using them. The simple fact is that he was suggesting you would force a child to be registered. How is he suggesting that that could be done other than by dragging the child kicking and screaming? We think that it is right at any age. I think that it would be rather unusual for a child of five to say that he was not going to do something when his parents insisted that it should be done.

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Moved by

[Lord Rosser]

99: Clause 29, page 22, line 7, leave out subsection (1) and insert—
“(1) The Secretary of State must establish an independent inquiry into the use of surveillance camera systems in England and Wales.
(1A) Having considered the recommendations of that enquiry, and following a report on those recommendations to Parliament, the Secretary of State must prepare a code of practice containing guidance about surveillance camera systems.”

[Lord Rosser]

Amendment 99 would place a duty on the Secretary of State to commission a full independent inquiry into the use of surveillance camera systems in England and Wales, as recommended by the House of Lords Select Committee on the Constitution, which also recommended statutory regulation. Amendment 110 would require a similar inquiry before any steps were taken to extend the code of practice into the private sector, as provided for by Clause 33(5)(k).

In its evidence to the Public Bill Committee, the Association of Chief Police Officers questioned the assertion that there are 4.2 million CCTV cameras in the UK, as is commonly cited, estimating that the figure was much closer to 1.8 million. Such wildly different estimates indicate the lack of information that exists on the extent and nature of closed-circuit television cameras and surveillance systems in this country. Where real evidence and information are lacking, misinformation will often move in to fill the gap.

The code of practice that the Government seek to introduce would place additional regulatory burdens on cash-strapped local authorities that could see a reduction in the use of CCTV technology and in the detection and apprehension of crime by the police. Yet a fundamental assessment of the extent and varying nature of CCTV use in the UK and its value has not been undertaken. My noble friend Lady Royall of Blaisdon, whose name is also on the amendment, visited Stevenage last month to see the hugely impressive system developed by the council there for the safety and security of residents. The idea that these surveillance systems should be targeted for further regulation is surprising.

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[Lord Henley]

The noble Lord has me there at the moment because I cannot assist him. We will be discussing further commissioners in due course. As regards the number that are registered, the noble Lord is ahead of me because he has seen that answered by one of my predecessors. I prefer to write to my noble friend about the details of his inquiry. Perhaps we can have further discussions between now and Report.

[Lord Rosser]

My Lords, the Minister said that his concern is about delay, and I will come back to that in a moment. If that is his concern, it does not explain why he does not accept Amendment 110, which relates to the private sector and those who may be covered by Clause 33(5)(k), since there is no intention at the moment of introducing it into these areas, and therefore it would be possible without causing a delay to agree to an inquiry there. I take it that in view of the fact that the Minister has not accepted it in relation to Amendment 110, it is a fundamental objection to an inquiry, not simply about delay, because Amendment 110 would not result in a delay.

[Lord Henley]

That is not the only aspect. There is also the cost. The noble Lord has not said who is going to pay for this inquiry.

[Lord Rosser]

If the Minister would care to tell me how much he thinks it is going to cost, perhaps we could discuss that issue and look at some of the other things that the Government are spending money on.

Our concern is that the code of practice—when it is drawn up, and we have not seen it yet—will act as a deterrent and prove to be something of an exercise in bureaucracy and additional cost. Additional cost is obviously an issue that is of considerable concern to the Minister. We do not sense that this Government look particularly favourably towards CCTV and that that may be one of the motives behind this proposal. We do not know, and the Minister has not told us, what the code will contain or what its impact will be on the use of CCTV. He has remained silent on that issue. The advantage of an inquiry is that it would show the extent or otherwise to which CCTV is being abused, and the Minister referred to that, so clearly he considers it an issue. It would also identify quite clearly the advantages and disadvantages of CCTV and what it has achieved, because some of us think that it has achieved a not inconsiderable amount. At least when the code was being drawn up, it would be drawn up against the background of a proper inquiry having taken place and looked at some of the allegations that are made. Therefore the code would be relevant and would address hard evidence instead of views or perceptions, and it would also make sure that the code would not in any way go over the top. That is why we are putting forward this proposal.

We note that the Minister has rejected it. He said that it was on grounds of cost as well as delay and had to agree that Amendment 110 would not cause any delay. Our argument is that when he draws up his code of practice, it may well lead to additional costs and a reduction of CCTV in areas where it would be beneficial for it to continue. However, we note what the Minister said. I will not pursue that matter any further at this stage, and I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

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Moved by

[Lord Rosser]

114: Before Clause 37, insert the following new Clause—
“Independent inquiry into use of investigating powers under RIPA
(1) The Secretary of State must establish an independent inquiry into the use of investigatory powers under the Regulation of Investigatory Powers Act 2000.
(2) The inquiry will examine in particular the use of directed surveillance and possible limits to its use.
(3) The inquiry will examine possible exemptions to the Act relating to the under-age sale of alcohol and tobacco and anti-social behaviour.
(4) Recommendations from that enquiry shall be reported to Parliament.”

[Lord Rosser]

This amendment relates to investigatory powers under the Regulation of Investigatory Powers Act 2000. On reading the Government's impact assessment, one could perhaps be forgiven for being a little puzzled about the need that Clauses 37 and 38 seek to address, because the assessment says:

“The coalition is committed to stop local authority use of RIPA … unless it is for serious crime and approved by a magistrate”.

It goes on:

“This stems from perceptions that local authorities have misused RIPA powers particularly in relation to low level issues”.

Thus we appear to see in this Bill that the Government are happy to spend money on the basis of perception, as their impact assessment states, rather than any proven need—despite their stating that money is in short supply. The cost of judicial approval for local authorities to use powers to gather communications data and undertake direct surveillance is apparently £250,000 a year, according to the Interception of Communications Commissioner. Yet we have a situation where the Government claim that they are acting to address public perception.

In his evidence to the Public Bill Committee as head of the independent Review of Counter-Terrorism and Security Powers, the noble Lord, Lord Macdonald of River Glaven, while supporting the requirement for judicial review, stated:

“The overwhelming preponderance of evidence gathered by the review showed that local authorities were using their powers quite proportionately and in quite important areas of business”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 27.]

The Interception of Communications Commissioner stated in his evidence that judicial review is,

“wholly unnecessary and will cost money”.

He continued that he had,

“audited a very large percentage of the applications over the last six years and there is simply no evidence of abuse, so there is no problem on which to spend £250,000 a year”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 37.]

In the main, these powers are used for investigating matters such as the sale of alcohol and tobacco to minors, antisocial behaviour, trading standards breaches, serious fire safety breaches and such issues. The amendment proposes that the independent inquiry that it provides for should look at exempting the RIPA powers in relation to underage sale of alcohol and tobacco and antisocial behaviour from this Act because they are areas where those powers are most frequently used and where the adverse impact and additional costs under the Bill will be most keenly felt. We are not opposed to the principle of judicial review, since this provides a check on executive power. However, we are opposed to spending money unless it addresses a clearly identified problem, backed up by hard evidence, when in other areas difficult choices are having to be made about cuts to vital services.

Against that background, Amendment 114 places a duty on the Secretary of State to commission an independent inquiry into the use of investigatory powers under RIPA. Amendment 114 does not require an inquiry before the commencement of Clauses 37 and 38. It would not delay implementing this part of the Bill, if the Government are determined to introduce it as soon as possible. It would, though, provide proper hard evidence of the areas, if any, that are in need of regulation—hard evidence which, at the moment, appears to be somewhat lacking. I beg to move.

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[Lord Henley]

My Lords, I am grateful for that intervention from my noble friend Lady Miller.

The measures in Clauses 37 and 38, together with the changes that we propose to make through secondary legislation, will deliver the coalition commitment to limit local authority use of RIPA—a commitment we made when the coalition came into being following the last election. The Bill also gives effect to the conclusions of the counter-terrorism review which was published in January. That review recommended two changes to the use of RIPA powers by local authorities.

First, these clauses will require that the exercise of RIPA powers by local authorities be subject to prior judicial approval. The second change, which will limit local authority use of directed surveillance to the investigation of offences which carry a maximum six-month sentence, will be implemented through secondary legislation made under RIPA. That will ensure that direct surveillance cannot be used to investigate relatively low-level matters, such as littering, dog fouling and schools enrolment, while still allowing it to be used against large-scale matters such as fly-tipping or waste-tipping, extensive criminal damage and serious or serial benefit fraud cases.

In response to representations received during the review, we have decided to make an exception to the seriousness threshold for offences relating to the underage sales of tobacco and alcohol. The investigation of those offences relies heavily on the use of directed surveillance and so in these circumstances the review concluded that it was appropriate to have a limited carve-out so that trading standards officers could continue to take effective action against businesses which seek to flout the law on age-related sales.

The conclusions of the counter-terrorism review were endorsed by my noble friend Lord Macdonald, who provided independent oversight of the conduct of the review. However, the amendment seeks a rather wider review of RIPA. I will say straightaway that, although the Government agree that it is essential that people’s privacy is protected from any unnecessary or disproportionate access by public bodies discharging their duties, this is precisely why RIPA was introduced, debated and passed by Parliament. And it is precisely why the way it is working is kept under constant review—not just by the Home Office but by the independent commissioners who report to the Prime Minister and publish annual reports which are laid before Parliament.

In bringing forward the current proposals to limit local authority use of RIPA, we are responding to public concern about a specific area in which the law operates. The measures are intended to restore confidence and ensure that any fears of future misuse are unfounded. But there is no well-founded indication that there is a need for much more fundamental reform of RIPA. Indeed, any regulatory regime would need to be built on precisely the same principles and contain the same human rights safeguards as RIPA is built on.

No one should be complacent about how our right to privacy is safeguarded. The measures before us come from one review and were endorsed by a public consultation. We need to get on and deliver them, but I put it to the noble Lord that another review before we have delivered the recommendations of the first would be premature and no doubt expensive—I do not know how many other reviews he will propose during the passage of the Bill. We will continue to monitor how the new arrangements are working in practice and adjust our approach if necessary. The developments will be reported on also by the independent RIPA commissioner, whose published reports, as the noble Lord will be aware, are laid before Parliament each year. We are confident that the measures in the Bill, together with the associated secondary legislation introducing the seriousness threshold, will prevent local authorities using RIPA in a way that undermines public confidence. Therefore, I hope that the noble Lord will feel able withdraw his amendment.

[Lord Rosser]

My Lords, in drawing up the amendment, which the Minister said was quite wide-ranging in relation to RIPA, we were seeking to address in particular that part of the Act relating to local authorities, since the coalition has made it—and the Minister has reaffirmed it—one of its objectives. It is stated in the impact assessment that the provision stems from perceptions that local authorities have misused powers rather than, apparently, hard evidence. Bearing in mind the Interception of Communications Commissioner’s view that expenditure of £250,000 will be incurred on something that is apparently regarded, certainly as far as local authorities’ use of the powers is concerned, as a perception, it did not seem unreasonable to suggest that there should be an investigation to get some hard evidence so that we might all be clear on precisely what problem we were seeking to address.

However, I have taken note of what the Minister has said. We will reflect further on the matter. In the mean time, I beg leave to withdraw the amendment.

Amendment 114 withdrawn.