Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 123
on the effective oversight allowed to his office. Enforcement notices are remedial, fail to punish and
are particularly ineffective powers for dealing with negligence or recklessness on the part of the data
controller. The Commissioner advocates the need for proactive audit and inspection powers and a
more punitive sanction regime.
All the measures suggested would be a positive response to increased use of surveillance. However,
they do not address the issue of resources. It is possible that the Information Commissioner did not
think it appropriate to address the issue of his office’s resource as part of a public evidence session.
However, whichever aspect of governmental operation is being referred to, an increase in power will
be little more than tokenistic without a corresponding increase in the ability to enforce. This is
particularly true in relation to the ICO. There are unlikely to be many publicly funded bodies that have
seen their responsibility expanded to a similar extent and who have not also enjoyed a
commensurate increase in resource.
Recommendation: Greater accountability to Parliament
Throughout this work a consistent theme has been Parliament’s inability to offer proper scrutiny and
oversight of policy impacting on privacy. This is partly an inevitable consequence of the British
parliamentary process. A combination of the ‘first past the post’ electoral system and the structure
of Parliament allows for long periods of time when the executive has overwhelming control of the
legislature. Between 1997 and 2005 the Labour Party had a massive overall majority in the House
of Commons of over 160. This meant that it was extremely unlikely that any of the Bills passing
through the House of Commons would face substantial difficulties. Indeed, in the period 1997-2005
the Government did not suffer a single defeat in the Commons. The House of Lords rarely has an
overall majority for any single party. However, as the Lords’ role is essentially one of review and
limited amendment, it is limited in its ability to force substantive change. The Committee system in
Parliament will usually have an in-built majority for the party of government so is also limited in its
ability to scrutinise. This is not said in criticism of the UK’s constitutional system but in order to
illustrate how the structure is not weighted in favour of intense scrutiny by the legislature.
In this context there are a number of changes to parliamentary practice and protocol that could allow
greater oversight by the legislature. There are perhaps both advantages and disadvantages to a
country lacking a written constitution. One of the advantages could be that it is not difficult to change
procedures.
At various times in this work reference has been made to problems arising from an inability to amend
regulations passed, giving details of, for example, bodies allowed access to communications data
or able to access the National Identity Register. This is because, almost without exception,
parliamentary orders either require no debate in Parliament (negative resolution) or limited debate
where the order will either be passed in totality or fall (affirmative resolution). When the legislation
relates to powers of privacy intrusion, the regulation will typically involve a list of bodies to be given
powers, access and so on. The problem for parliamentarians is that, while the powers themselves
are clearly legitimately exercisable by some bodies 241 , they might be excessive for others. A good
example of this is the ‘snoopers charter’, which was an order made under RIPA allowing public
241
Presumably the powers in the primary legislation would have been voted down by Parliament or declared
incompatible with privacy rights through legal challenge otherwise.