Protection of Freedoms Bill

Lord Tunnicliffe Excerpts

Tuesday 13th December 2011 Grand Committee

[Baroness Hamwee]

My Lords, I shall speak also to Amendment 101, and there are other amendments in this group. My amendments are quite simple. They are probing amendments. Clause 29(3) provides that provision may, in particular, be made in the code about standards applicable to persons using systems or processing information. When I read that, I hesitated and wondered what was meant by “standards” in this context. My amendment proposes inserting a reference to operational practices because it seems to me that they are relevant, rather than the people who are using or maintaining the systems as individuals. I beg to move Amendment 100 in order to help me understand the clause a little better.

[Lord Tunnicliffe]

My Lords, I rise to speak to Amendments 102, 106 and 112A. I thank the noble Lord for ensuring that the results of the first consultation on the proposed CCTV code of practice were published before the Committee stage in order to ensure proper scrutiny. The opposition amendments in this group seek to probe the Government’s thinking in this area and to tease out more detail of the shape of the final code now that they have reflected on the results of the consultation.

On Amendment 102, we are concerned that any future code should not force local authorities and police forces into disclosing the location of cameras. The consultation notes that some respondents,

“considered that there ought to be public access to a full list of camera locations and data retention periods”.

I note that the Government, although not committing to such a view, stated in response:

“The Government intends that the Code of Practice will increase transparency over the operation of surveillance cameras”.

It is right that, in some cases, CCTV locations are made public. Indeed, many cameras are clearly visible to the public and their visibility acts as an important deterrent to crime. However, it must be right that local authorities and police should reserve the right to conceal the location of other cameras, particularly those positioned in sensitive locations and deployed temporarily in order to apprehend criminals. There is also a real concern that, by disclosing the location of cameras and surveillance centres, there is a risk that these will become the targets of vandals and criminals wishing to prevent the detection of crime. Will the Minister give a clear assurance to the Committee that any future code of practice will not include a blanket requirement to disclose the location of surveillance cameras?

Amendment 106 probes the Government’s intentions with respect to the code of practice in relation to CCTV and ANPR footage that is used as evidence in court. Clause 33 currently provides:

“A court or tribunal may, in particular, take 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 fact, this would appear to be the only real enforcement tool at the disposal of the Government. Local authorities will be required to have regard to the surveillance camera code but they will commit no criminal or civil offence if they fail to adhere to it. The implication is that the Government envisage that local authorities and police forces will feel compelled to comply with the code for fear that otherwise evidence provided by their cameras will not be admissible in court.

This view is reinforced by the response to the consultation in which the Government note that the failure to comply can be tested in judicial proceedings. It is one thing to conclude that evidence should be inadmissible on the basis that it violates requirements under the Data Protection Act; however, it is quite another to jeopardise whole trials on the basis that, for instance, the location of the camera in question was not adequately disclosed to the public. What assurances can the Minister give to the Committee that enforcement of the code in this way will not lead to the police being hamstrung in their use of key evidence derived from CCTV cameras?

Finally, Amendment 112A seeks again to probe the Government’s intentions with regard to ensuring that there is clarity for local authorities on the overlap of existing requirements under the Data Protection Act and those under the proposed code of practice. This point was raised by a number of sources when the Bill was debated in another place. Indeed, the Information Commissioner has himself expressed concerns about the implementation of the code in this area. In a letter to my noble friend Lady Royall on 22 November the Information Commissioner noted:

“There is potential overlap between these provisions, including my role, and those set out in the bill relating to the Secretary of State’s Code of Practice and the activities of the Surveillance Camera Commissioner”.

In his memorandum to the Public Bill Committee, the commissioner goes further, stating that,

“there is a risk that regulation becomes frequently fragmented, confusing and contradictory, especially if commissioners take different approaches … there will be overlaps in their responsibilities running the risk that commissioners may adopt differing interpretive approaches and guidance on each other’s statutory provisions”.

The Government’s consultation recognises that there is an issue to be dealt with, and states:

“We shall take note of the concern expressed by respondents in the way we develop the role of the Surveillance Camera Commissioner and how this interacts with that of the Information Commissioner and the Surveillance Commissioners”.

To prevent unnecessary bureaucratic burdens and confusion in the public sector, I ask the Minister to take this opportunity to expand on how the Government aim to ensure maximum clarity and minimum overlap in the roles and requirements of the two commissioners.

[Lord Henley]

My Lords, my noble friend Lady Hamwee moved Amendments 100 and spoke to Amendment 101, and the noble Lord, Lord Tunnicliffe, spoke to Amendments 102 and 112A.

In the amendment that we have just dealt with, the noble Lord, Lord Rosser, complained that we knew nothing about the code. Obviously, we do not know about the code at this stage because it has not yet been prepared. Some detail is given in Clause 29 about what the code may include particular provision about; we lay it out in subsection (3), which says:

“Such a code may, in particular, include provision about”,

and then goes from paragraphs (a) to (i). Subsection (4)(a) then provides that such a code also,

“need not contain provision about every type of surveillance camera system”,

and subsection (4)(b) says that it,

“may make different provision for different purposes”.

We have amendments from the noble Lord, Lord Tunnicliffe, dealing with that.

I start by dealing with my noble friend’s amendments, which seek to extend the list of matters that may be covered by the surveillance code of practice. As I have said, subsection (3) is intended to set out a very broad framework in the Bill for which issues may be covered in the code of practice. We have deliberately adopted a very flexible framework so that the code of practice can be revised over time in the light of experience and to reflect the wide range of circumstances in which surveillance cameras are used. For these reasons, the list of matters that may be included in the code is not intended to be prescriptive. Nor is it intended to be an exhaustive or exclusive list. The nature of such non-exhaustive lists is that they inevitably attract debate as to why this or that matter has not been included. Certainly, on first seeing Amendments 100 and 101 from my noble friend, I was unsure what she had in mind. However, I am grateful for her explanation that she wanted a degree of reassurance about what might be included. She also expressed concerns about standards and how they could concern not only the competence of an operator of CCTV but whether the operator was a fit and proper person. Those standards might also apply to operational processes but the code is intended to provide a degree of advice, rather than absolute prescriptive requirements. With that reassurance in mind, I hope that the noble Baroness will accept that, as we develop the code further, we can consider her points and make sure we get it right.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I support this group of amendments, but with a degree of confusion as to just what the Bill provides. If one looks at Clause 29, which introduces the code of practice, there is no reference there at all to relevant authority. There are two references in subsections (3)(f) and (3)(g) simply to “persons” operating a CCTV system. The more my noble friend introduced the group of amendments, the more I wondered why on earth this code is not applicable to all users of CCTV systems, be they public, private or whatever. Why, for example, in a shopping mall with endless numbers of CCTV cameras should they not be subject to the code requirements, just as any of the relevant authorities as defined in Clause 33 are? My noble friend the Minister might like to ask her officials whether Clause 29 was indeed drafted to apply to all those operating CCTV systems, and why Clause 33 itself refers twice to relevant authorities but in subsection (2) simply refers to a

“failure on the part of any person to act in accordance with any provision”,

of the code.

[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.