Privacy and the Protection of Freedoms Bill

The Protection of Freedoms Bill, introduced in the House of Commons on 11 February 2011, is the second part of the UK Coalition Government's mission to 'restore freedoms and civil liberties through the abolition of unnecessary laws'.

The first part was the abolition of the previous government's identity card scheme, now achieved by the Identity Documents Act 2010.  The new Bill is the 'next step in the government's legislative programme to safeguard civil liberties and reduce the burden of government intrusion into the lives of individuals'.  The purpose of this article is briefly to explore the Bill's likely impact on privacy and information law issues.

The provisions of most relevance are as follows:

• Biometric data.  The DNA and fingerprint samples of innocent people will no longer be retained indefinitely.  If a person is either not charged with, or is acquitted of, a minor offence, the samples will be destroyed on acquittal or when the decision not to charge is taken.  If a person is charged with a serious offence and later acquitted, samples may be retained for three years with a possible two year extension by court order. Biometric data may not be taken from children under 18 without parental consent.

• Surveillance cameras.  A statutory code is introduced for the regulation of CCTV and ANPR (Automatic number plate recognition).  A new Surveillance Camera Commissioner will be appointed.

• Local authorities will be required to obtain judicial approval for the use of covert investigation methods.

• Powers of entry.  These will be repealed or consolidated and a new code of practice created to regulate their exercise.

• Wheel clamping of vehicles will be prohibited or controlled.

• The vetting and barring scheme used to protect vulnerable groups will be 'scaled back to common sense levels' The criminal records regime will also be reformed so as to restrict the amount of data appearing on criminal record checks.

• Freedom of information.  The FOI regime will be extended to cover companies wholly owned by two or more public authorities.  Public authorities will be obliged to proactively release datasets in reusable format.  Changes to the appointment and accountability arrangements at the Information Commissioner's Office are designed to enhance the Commissioner's independence.

The Bill has been trumpeted by the Deputy Prime Minister, Nick Clegg, as a tangible step towards ‘restoring hard-won British liberties’.  In his words the ‘landmark’ Bill ‘contains an array of sweeping reforms that will put an end to unwarranted local authority snooping and unnecessary scrutiny of individuals’ and ‘will result in an unprecedented rolling back of the power of the state’. A breathless press release enumerates the benefits of the measures in terms that express their expected political appeal:

• an end to the routine monitoring of 9.3 million people under the radically reformed vetting and barring scheme

• millions of householders protected from town hall snoopers checking their bins or school catchment area

• the scrapping of Section 44 powers, which have been used to stop and search hundreds of thousands of innocent people

• the permanent reduction of the maximum period of pre-charge detention for terrorist suspects to 14 days

• DNA samples and fingerprints of hundreds of thousands of innocent people deleted from police databases

• thousands of gay men able to clear their name with the removal of out-of-date convictions for consensual acts

• thousands of motorists protected from rogue wheel clamping firms

• an end to the fingerprinting of children in schools without parental consent

• the introduction of a code of practice for CCTV and ANPR systems to make them more proportionate and effective

• restrictions on the powers of government departments, local authorities and other public bodies to enter private homes and other premises for investigations and a requirement for all to examine and slim down remaining powers

• the extension of the scope of the Freedom of Information Act and strengthening the public rights to data

Some commentators are unconvinced that the Bill lives up to the sweeping claims being made for it. One dryly remarks: “It's no Magna Carta. Those of us who teach public law in British universities will certainly have to grapple with the Protection of Freedoms Bill. But will it, like that earlier constitutional text, echo through the centuries into the classrooms of 2311? I doubt it.”  Another gives the Bill credit for tackling some of the previous government’s ‘most outrageous measures’ but says it ‘falls well short of the promise made in the Bill’s title’.  In the opinion of the Law Society of England & Wales, ‘the Bill as a whole fails to measure up to the government’s grand rhetoric’.

The UK’s Information Commissioner, Christopher Graham, on the other hand, has said he welcomes the Bill and supports its aims of ‘strengthening privacy, delivering greater transparency and achieving improved accountability, as well as greater independence for the ICO. The Bill engages with issues that have been longstanding concerns for us: ensuring the right organisations are subject to freedom of information requirements; that the information the public need is available when they need it; increased privacy safeguards on biometric information such as DNA profiles and ensuring effective regulation of camera surveillance, including the increasing use of automatic number plate recognition’.

The Bill is indeed no Magna Carta.  But nor did it set out to be a grand declaration of citizens’ rights and freedoms.  The present UK government – or at least important sections of the government and their parliamentary supporters - remains uncomfortable with the notion of universal charters of rights.  In the last few weeks the Prime Minister himself has been getting hot under the collar about court decisions in the areas of voting rights for prisoners and the right of sex offenders to have their names removed from the sex offenders register.  In relation to voting rights, the Government has been under pressure to implement a change in the law to comply with a 2005 decision by the European Court of Human Rights that the UK (Hirst v United Kingdom) was breaching the European Convention on Human Rights by preventing prisoners from voting in public elections.  Mr Cameron said he had ‘every sympathy’ with those who objected to the decision, telling Parliament: ‘I don’t see any reason why prisoners should get the vote. This is not a situation I want this country to be in.

In the case of sex offenders, the UK’s Supreme Court decided that it was a breach of the Article 8 rights of convicted sex offenders to deny them any right of appeal against their continued inclusion on the register.  Mr Cameron said he was ‘appalled’ by the decision.

It should, then, come as no surprise that the Protection of Freedoms Bill lacks any broad statement of principle such as might give rise to the politically unpalatable scenarios of votes for prisoners and rights for sex offenders.  Instead, we have a pragmatic set of proposals, some of which are loosely connected and the rest hardly connected at all.  While pragmatism is always welcome, so too is coherence and it is, perhaps, a strange thing for a piece of legislation to apply the same language of rights and freedoms to retention of DNA samples, fingerprinting children and CCTV as to ‘rogue wheel-clamping firms’.

Amid the criticisms of a lack of ambition and coherence (Dr Cian Murphy has described it as ‘a list of legislative pet hates’), most people have welcomed the Bill’s attempts to deal with recent encroachments on personal privacy, not least those by the State itself.  For some people, however, the attempts do not go far enough.  Since the purpose of most of the Bill’s reforms is to control or downsize activities thought to affect personal freedoms, it is inevitable that this will fail to satisfy those campaigners for more radical reform who wanted to see the wholesale repeal of anti-terrorism and other ‘illiberal’ legislation passed by the government following the 9/11 attacks.

The Bill does, however, recognise that a new approach is needed to deal with the privacy implications of CCTV and ANPR. Pending further consultation on the provisions of statutory codes for the regulation of CCTV, it is too early to say what the effect of those provisions will be.  It seems a pity that the proposals for better regulation of CCTV are restricted to the use of CCTV by the police and local government only when the use of CCTV is so much more widespread (Henry Porter points out that the Bill does not affect the use of CCTV in schools – a development that allows Stoke Park School and Community Technology College in Coventry to install 112 cameras on its premises, at a cost of £10,000).

The Bill also recognises that local government has not always been the best judge of how it should use its regulatory powers.  It required the intervention of the Investigatory Powers Tribunal to bring the over-zealous bureaucrats to heel in Paton v Poole Borough Council, an extraordinary case in which a local authority spied on a family suspected of trying to slip their child into a school in the wrong catchment area.  As a result of that case, individuals have already gained some protection from ‘town hall snoopers’, so Mr Clegg’s reforms may have come a little too late.  Similarly, it seems that the reform of the vetting and barring scheme may now be a less pressing issue than it once was: ‘common sense’ has to an extent already found its way into the scheme following publicity over the absurd prevention of unvetted children’s authors from appearing at public events in schools.

The proposed improvement of the freedom of information regime has been rightly welcomed by the Information Commissioner.  This will be achieved in two main ways – an extension of the range of bodies subject to freedom of information obligations and the obligation on public authorities to release information proactively and in a format that provides real and not just notional access.

Overall, the Protection of Freedoms Bill should be welcomed.  Pending the Coalition Government’s clarification of where it stands on the possible enactment of a UK Bill of Rights (a commission to investigate this is to be set up imminently according to a statement by the Prime Minister on 16 February 2011), it is surely right that legislative attention should in the meantime be paid to some of the more pressing issues of privacy and information protection that currently face us in the UK.

See further chapter 7 and section 6.4 of The Privacy Law Handbook.  A version of this article first appeared in the World Data Protection Report.

The Protection of Freedoms Bill

'Restore freedoms and civil liberties through the abolition of unnecessary laws'