Overlooked - Liberty

More documents

Recommendations

Info

<strong>Overlooked</strong>: 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.
124 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain bodies access to communications data. When the original list of agencies was published in 2002 it extended access to all local authorities as well as agencies such as the Food Standards Agency and the Royal Pharmaceutical Society. The problem for parliamentarians is that they might agree to most of the agencies on the list but feel that it is excessive to allow the Food Standards Agency the power to self-authorise communication data access. They would not, however, be able to do anything to prevent this without voting against the entire order. Politically this would be an extremely difficult thing to do given the frequent conflating of privacy issues with national security and crime detection agendas. Few in politics wish to be left vulnerable to allegations of being ‘soft’ on crime and terrorism. The rarely used but extremely useful mechanism of the “amendable regulation” could assist. This is written onto the face of the statute and specifically allows for Parliament to amend regulations. It has been used in the Civil Contingency Act 2004 to allow Parliament the ability to determine what constitutes a threat to human welfare in a time of national emergency 242 and in an early version of the Identity Card Bill 243 . At the heart of human rights analysis of privacy considerations is the question of proportionality. Giving parliamentarians the power to amend the regulations would allow a determination as to whether a specific exercise of power is proportionate. If the Information Commissioner’s recommendation of privacy impact assessments is taken up, we suggest that any statement accompanying publication of a Bill might include reference to the extent privacy issues can be determined by secondary legislation. Increased parliamentary accountability could also be achieved by re-designation of the reporting role of individual Commissioners. There are several Commissioners who have specific rolls in assessing the use of privacy impacting powers. The Interception of Communication Commissioner keeps under review the issue of interception warrants issued under RIPA and the adequacy of the arrangements for ensuring the product of interception is properly handled. The Intelligence Services Commissioner is responsible for reviewing the operation of directed surveillance, intrusive surveillance and covert human surveillance powers exercised under RIPA by the security services and other officials such as those of the Ministry of Defence 244 . Rather confusingly a separate body, The Office of Surveillance Commissioners, also has a remit covering the review of directed, intrusive and covert surveillance but this covers general use by policing and other agencies. Finally, when the NIR comes into effect, the National Identity Scheme Commissioner will be responsible for reviewing the operation of certain aspects of the scheme. What this rather bewildering array of oversight bodies share in common is a duty to report primarily to the Prime Minister or to another Government Minister. It would do much to enhance perceptions of accountability if, (similar to the Information Commissioner 245 ), all Commissioners reported directly to Parliament rather than the Executive. This would give both Houses the opportunity to review the Commissioners’ analysis of the operational use of the statutory powers they review. At present the reports are published after reporting to the Prime Minister or a Minister, so there should not be any security issues. Such a move might be considered 242 Section 19 (5) Civil Contingencies Act 2004. 243 It attached to the order making power compelling specified groups to register. When this Clause was removed from the Bill as part of the compromise to let it pass the resolution power was also removed. 244 See footnotes 26-28 above. 245 S.52 DPA.
Page 1 and 2:
Overlooked: Surveillance and person
Page 3 and 4:
Acknowledgements I would like to th
Page 5 and 6:
II Overlooked: Surveillance and per
Page 7 and 8:
iv Overlooked: Surveillance and per
Page 9 and 10:
2 Overlooked: Surveillance and pers
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
10 Overlooked: Surveillance and per
Page 19 and 20:
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80: 72 Overlooked: Surveillance and per
Page 107 and 108: 100 Overlooked: Surveillance and pe
Page 129: 122 Overlooked: Surveillance and pe
show all

Overlooked - Liberty

Create successful ePaper yourself

Delete template?

Save as template?