Protection of Freedoms Bill

Debate between Tom Brake and Baroness Blackwood of North Oxford

Tuesday 1st March 2011 Commons Chamber

[Nicola Blackwood (Oxford West and Abingdon) (Con)]

My hon. Friend the Member for Gainsborough (Mr Leigh) is no longer in his place, but I hope he will forgive me for being here in place of my predecessor, and perhaps the fact that I share his concerns about section 5 of the Public Order Act 1986 will act as some consolation.

It is a joy to have the opportunity to speak in this debate on another coalition move to try to redress the current imbalance between security and civil liberties. All Governments must, of course, be fully committed to public safety and protecting victims of crime, but under the previous Government far too many of our liberties were sacrificed in the name of apparent short-term securities. In too many cases, the previous Government acted before establishing a causal link between that sacrifice and the claimed “greater security”. In the absence of the necessary evidence or, in some cases, even public debate, actions including the indefinite retention of DNA of children never convicted, the creation of more than 500 new powers of entry and the careless scattering of a patchwork of surveillance powers across the statute book, not to mention the spectre of 90-day detention without trial, all left us wondering whether some members of the previous Government had had a “common sense-ectomy”. Even the Human Rights Act 1998 cannot make up for the disproportionate and draconian measures that they introduced.

In that context, I am pleased that the coalition Government are living up to their promise to cut back on the previous Government’s aberrations and to begin restoring the civil liberties that for so long defined British democracy. I apologise if that language seems hyperbolic, but let us think for a moment about the mother who finds herself being spied on by her local authority because she has said that she lives in a certain school catchment area; the child who needs an iris scan to borrow a library book; or the archbishop who finds himself the subject of five Criminal Records Bureau checks, not to mention the innocent man who suddenly finds himself without the right to a trial by jury. Given that the Labour party is so apparently committed to human rights, I find it inexplicable that that state of affairs should have ever arisen. Thankfully, we can always rely on the electorate to draw the line when their Government lose their grip, and I am greatly reassured that the coalition Government have been so prompt in introducing this Bill. As must be obvious by now, I support its intentions and I would have been voting for it today had the Opposition decided to push for a vote.

I would, however, like to take this opportunity to raise a few points of detail with the Minister. Nobody is questioning the fact that DNA can play an invaluable role in crime detection, but under Labour a new profile was added to the new DNA database every 45 seconds. Unsurprisingly, the Home Office had to admit that the database contained more than 500,000 false or wrongly recorded entries. The new biometric data retention regime proposed in part 1 seems to strike the right balance between greater proportionality and targeting, while still protecting the public from those who would commit heinous crimes. That is a great step forward and the regime seems likely to meet the requirements of the European Court of Human Rights ruling. However, I am unclear why the Government have not chosen to distinguish between an adult and a child who is charged but not convicted of a serious crime. In general, legislation does make the distinction between the adult and the child. Childhood convictions are considered spent in half the time of those of adults, childhood lawbreaking has not been found to be necessarily indicative of future behaviour, and the principles of restorative justice are now commonly associated with youth justice. It would be helpful if the Minister could clarify the decision-making process on that point.

Secondly, except in the specific case of an application for extended retention to be heard by the magistrates court with right of appeal for both sides to the Crown Court, I am unclear whether there is a right of appeal to a judicial or otherwise independent body for individuals who feel that their biometric data have been retained unlawfully or inappropriately. I have no doubt that many colleagues have had the same experience as I have of constituents whose data have been taken and retained in error. I even have one constituent who was inaccurately registered as a sex offender for 15 years owing to a clerical error. We cannot overestimate the damage that this sort of error can cause to a person’s life. It is vital that a clear route of appeal and system of remedies are available to innocent individuals who get accidentally caught up in the system.

I am also a little unclear where the new regime will sit in relation to the Association of Chief Police Officers guidelines. I am particularly concerned that there should be clarity about the role of the “exceptional case procedure” in the new system. As the Minister knows, the guidance states that an individual’s record will be retained until that person has attained 100 years of age but it may be removed before this date by way of the exceptional case procedure. The guidelines state:

“Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC ‘owned’ by them”

but only

“in exceptional cases.”

Those might include

“cases where the original arrest or sampling was found to be unlawful”

or cases

“where it is established beyond doubt that no offence existed”.

I believe it is helpful for chief officers to have some degree of discretion, especially in relation to scenarios outlined in the exceptional case procedure. I am anxious to learn how such circumstances are to be addressed under the new system.

Finally, on part 1 of the Bill, I welcome wholeheartedly the regulation of schools’ retention of biometric data, especially the requirement for the consent of the parents and the child before such data are recorded. I do not understand why schools need to retain these data and I was rather shocked by the Library’s estimates that 30% of secondary schools and 5% of primary schools already use such biometric systems. I would like to see official figures on this issue so that policy in this very sensitive area can be made on the basis of evidence. Is the Minister considering requiring schools to notify the Information Commissioner’s Office if they intend to hold such data, and if not, will he tell us why not?

The surveillance regulation proposals in part 2 are well overdue. No one challenges the value of well-located, targeted surveillance, which has undeniable importance for crime detection and public safety, but there has been an exponential growth of CCTV and automatic number plate recognition systems, which has for the most part taken place outside formal regulation. The UK now has an estimated 5 million to 6 million surveillance systems. The British Security Industry Association claims that state-owned CCTV accounts for less than 10% of these and that

“it is the privately owned surveillance systems that provide the majority of evidence in prosecutions.”

It would therefore be helpful if the Minister clarified how the new code of practice will apply to privately owned systems and whether the “relevant authorities” mentioned in clause 33 will include private owners whose surveillance systems cover public areas.

[Tom Brake]

Often, one purpose of CCTV is to provide evidence and if a CCTV image is not of the appropriate quality, it cannot be used as evidence. Does the hon. Lady agree that some regulation of both public and private systems might help in pursuing cases against criminals?

[Nicola Blackwood]

I cannot imagine why the Government’s understanding where surveillance systems are held and who holds them could in any way limit the improvement of justice in this country.

I also welcome the proposals in part 3 to insert judicial oversight in relation to the Regulation of Investigatory Powers Act 2000. This is an excellent start in reforming the confusing jumble of legislation dealing with access to communications data. However, we have some way to go before we have a system which tightly defines the reasons for which access can be granted—a particularly vague example of which is

“the economic well-being of the United Kingdom”—

and which offers a straightforward legislative framework so that not only the bodies that use surveillance powers but the citizens who may be subject to them can clearly understand their rights and responsibilities.

I could go on and welcome the permanent reduction of pre-charge detention to 14 days, the reinstatement of the right to trial by jury and the progressive proposals on stop and search without suspicion, but the point is clear. In large part, the Bill returns the state’s powers to common-sense levels and signals a significant step forward for the civil libertarians among us. The Bill is the answer to the calls of many in this country, including those who had felt, under the previous Government, that state abuse of power had reached a new low, that they had become guilty until proven innocent or that they were being forced to make a false choice between democracy and security. Of course there is a difficult balance to strike between liberty and security, and any adjustments need to be made with the utmost care, but there can be no doubt that in the past decade that balance had tilted much too far in the direction of security and away from civil liberties. That is why I support the Bill and hope that it will mark the end of the Government-sponsored fallacy that absolute security can be achieved by the unacceptable erosion of civil liberties.