Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013

Baroness Smith of Basildon Excerpts

Wednesday 17th July 2013 Grand Committee

[The Earl of Erroll]

My Lords, I will say a few words because this is an area in which I take an interest. In principle, I have no trouble with using surveillance cameras around the place to find out what happened after an event and, in some cases, to anticipate what might happen. The only thing that has ever worried me is when things are linked together to try to surveil and track a population around. From that point of view, ANPR cameras could be used for purposes other than traffic management and could start to be used for tracking people. A lot of that stuff involves data protection, so all this looks fairly innocuous.

The main thing that I am worried about is whether it really does anything. At the end of it all, these are all good words. Are we just adding more cost and stuff than can be more effectively used elsewhere? It looks like we have just invented a couple of extra posts, which will be very nice for someone; it will do a bit more box-ticking so everyone will think that it has all been covered. However, if it starts being really effective, it will interrupt other people’s jobs where they do need cameras, and make them more difficult.

So I am giving a few words of caution: let us not waste public money on something that is merely a cosmetic exercise. At the same time, many of the issues that do matter in this are covered by the Data Protection Act, for instance accurate databases and things like that. So they are already covered elsewhere. Will having an extra commissioner really make a difference? It is obvious that I am sceptical about it. It does not really address the big problem about the surveillance state and things like that, but we do not have that yet, thank goodness.

[Baroness Smith of Basildon]

My Lords, I first thank the noble Lord, Lord Taylor, for his helpful explanations and information. Just prior to the Committee, I indicated to the Minister that we are considering praying against these instruments. I apologise if he was not told beforehand, although the Whips’ Office knows. In future I would talk to them directly. These are important issues.

I want to offer the Minister the opportunity to answer my questions first, because that might alleviate some of my concerns. His answers will be very important in that regard. The noble Earl, Lord Erroll, hit the nail on the head with some of the concerns that I want to raise as well. The Minister referred to our own Secondary Legislation Scrutiny Committee, which was quite damning about this order’s ability to achieve the objectives that the Government set out. It stated:

“While the principles themselves are commonsense, some of the explanation is vague, with frequently used terms such as ‘proportionate’ or ‘appropriate’ left undefined in the context”.

Those are wise words. I would impress on the Minister the committee’s final comment, which stated:

“The House may therefore wish to question the Minister about the Government's plans for the wider application of the code and to invite the Minister to clarify how its benefits will offset the costs of the additional bureaucracy involved”.

This SI increases costs and bureaucracy to local authorities and the police of installing CCTV. The Explanatory Notes claim that this is a policy decision motivated by a desire to halt,

“the extent to which private lives are exposed to ever greater scrutiny by other individuals, organisations or the State, leading in some instances to a potential exposure to criminality, or more generally, to an erosion of personal privacy”.

That is the point that the noble Earl, Lord Erroll, made. Can the Minister say where in this order is anything that restricts the use of CCTV by individuals or private companies and makes any difference to the potential exposure of criminality that the Government have identified? I am not sure what that means in the context of this order. It may be a government objective, but it is nowhere in this order that I can find, because only public bodies—mainly the police and local authorities—are bound by the order before us today. The consultation and the order will not prohibit the installation of CCTV. What it will do is increase the paperwork and bureaucracy, making it considerably more expensive.

The Government have made a commitment to lean government, and I do not think that it was just a reference to Eric Pickles’s diet when the Chancellor said it. The impact assessment states that this extra flood of bureaucracy is not subject to the Government’s principles of “one in, two out”, in terms of regulation. Why is that? What is the point of having such a policy if the Government can then simply exempt a regulation from it? That makes a complete nonsense of the policy. The Home Secretary said:

“After years of bureaucratic control from Whitehall … this government trusts you to fight crime”,

but apparently not where CCTV is concerned. Here, the Home Office is creating 25 pages of statutory guidance for local authorities to go through—25 pages of hoops for the police to jump through before they can install CCTV.

--- Later in debate ---

The noble Baroness asked about the cost of the commissioner. The figure of £250,000 is the cost that the previous Administration identified for an interim CCTV regulator. The commissioner will encourage, advise and enable systems operators to use CCTV more effectively and proportionately to protect the public. Those words have meaning. I do not believe that “proportionately” does not have a meaning; it clearly does. The Home Office will take an early and visible lead—

[Baroness Smith of Basildon]

I am sorry to interrupt the noble Lord and am grateful to him for giving way. However, he said that I asked about the cost of the commissioner. I did not do so as I referred to that matter in my comments. What I was asking about were the powers of the commissioner and how they could be enforced, not the cost.

[Lord Taylor of Holbeach]

The powers are clearly laid out in the instrument which places those bodies identified under a statutory obligation to comply with the code. That is what the statutory instrument is about. Those are the powers of the commissioner and his power is, of course, to see that the code is enforced by those public authorities so affected.

As I say, the Home Office will take an early and visible lead in the voluntary adoption of the code and, along with the Surveillance Camera Commissioner, will show how working with the 12 guiding principles can help build and maintain public confidence. Along with the Surveillance Camera Commissioner, we will be raising awareness of the code and its guiding principles. There will be practical advice on how to apply those principles so that where CCTV is needed it is effective in meeting its purpose. Maintaining public confidence is in itself an incentive for voluntary adoption. Not to adopt the code will be to risk reputational damage by appearing to be unwilling to engage with the public or to follow good practice.

The number of cameras is not really the issue. The BSIA’s recent report was clear that the issue is whether the cameras have the ability to meet their purpose and adhere to legal requirements.

The additional costs—the noble Baroness may care to take notice of this—incurred by a local authority are estimated to be on average £2,000 a year, and on average £23,000 for a police force. These are modest costs and are expected to bring the benefits of better quality images and help in investigating crime and bringing criminals to justice and greater public confidence. Placing a monetary value on these benefits cannot be done easily, as I think that the noble Baroness accepted, and yet they are important.

The Surveillance Camera Commissioner plans to generate a self-assessment test, which will be a speedy and efficient mechanism for an organisation—or a business in the case of voluntary adoption of the code—to assess whether it is complying with the code. This will be faster than digesting the code in its entirety and will help to demystify the principles in the code and any technical terminology used. There is no mandatory requirement to replace an existing system but organisations will be encouraged to work to approved operational and occupational standards. This can be done by better use of the existing resources. So I have focused once again on the effectiveness of the systems in delivering what is needed.

CCTV and ANPR are used in a variety of settings for a variety of purposes. Therefore, if some of the definitions are vague and general rather than specific, that is because the code does not contain a detailed, prescriptive and one-size-fits-all guidance which defines every circumstance. Some may regard it as vague but it is a matter for operators to assess necessity and proportionality when using CCTV and ANPR, and to then test their judgment with the public and their partners. This code and the Surveillance Camera Commissioner will provide a framework within which they can exercise their discretion to do so.

The commissioner will provide advice on approved operational, technical and competency standards. He is already meeting with relevant certified accreditation bodies to explore a formal certification scheme for CCTV. In addition, he is developing a self-assessment template, as I have said, to help system operators to assess compliance and to follow the code.

The noble Baroness asked about SOCA. Currently, of course, when Ministers say SOCA they mean the National Crime Agency, which will be its successor. I can demonstrate to her how public authorities have viewed the establishment of the CCTV and surveillance commissioner and his role by the response of authorities such as SOCA and, for that matter, the non-territorial police forces which have been pleased to sign up to this code. They can see the huge advantages of being part of a group of law enforcement agencies that receive the support and technical assistance of the commissioner and the reassurance that the commissioner’s appointment offers.

The noble Baroness also asked about the mechanism for enforcing compliance with the code. Perhaps I may explain. Local authorities and the police will be under a duty to have regard to the code when exercising their functions. The SI will place a statutory duty on them. When a local authority or police force fails to do so, it will be vulnerable to judicial review for a breach of that statutory duty. The possibility of being subject to such a legal challenge will incentivise local authorities and the police to adhere to that statutory duty.

Before I go on, I shall talk about DNA and the noble Baroness’s comments in that area. This is complex legislation, as she will appreciate, and considerable work has been carried out to date to prepare the relevant systems and to consult law enforcement authorities. Having made the policy decision, we undertook a full public consultation and carefully considered the responses before we brought this guidance forward. I am satisfied that it is in time and is specifically designed to address the concerns that the noble Baroness raised.

The noble Baroness particularly asked about the current legislative framework against which decisions have been made. The current legislative regime whereby material is held by the police and other law enforcement authorities is still in effect. There have been no applications to extend the retention period on national security grounds and no material has been destroyed as a result of not extending the time period on those grounds. There have been no applications, but the framework has not ceased to exist.

I am sure that the noble Earl, Lord Erroll, will be pleased to hear that under guiding principles one and two we are clear that the use of CCTV or ANPR must be in pursuit of a legitimate aim and meet a pressing need and must take account of privacy, which, as I have tried to emphasise, is the countervailing balance that this code is designed to reconcile. These first principles establish the need for surveillance and reassure the public that it is necessary.

The Government’s intention is to give communities confidence that camera systems are used to meet a legitimate aim, that they are necessary and proportionate —words which noble Lords will fully understand—and that they are used effectively to meet a stated purpose. The vast majority of systems are operated privately. However, local authorities and the police are key organisations in ensuring the safety and security of our public places—which is where the code is initially focused—and therefore have a significant interest in the use of CCTV. That is why the starting point of our journey of incremental and measured regulation is to place them under a duty to have regard to the code. CCTV is used in a wide variety of settings for a wide variety of purposes. Therefore, the code does not contain detailed, prescriptive, one-size-fits-all guidance which attempts to define every circumstance. Some may regard this as vague, but it is for operators to assess necessity and proportionality when using CCTV and then to test their judgment with the public and partners. This code will help them do so.

In this complex and challenging arena we have always been clear that our approach to regulation will be incremental and measured. Andrew Rennison characterised this as taking small but practical steps, and I am sure that that is a strategy that the noble Baroness will endorse. We are taking action to reassure the public and as a driver of public standards. We in government remain committed to ensuring that, where the powers which these orders seek are granted, they are necessary, proportionate and transparent and, crucially, that their use goes hand in hand with respect for our long-held individual rights and freedoms. Both the orders before the Committee today go to the very heart of that matter, and I commend them to the Committee.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister, who has sought to address the points that I have made. However, I am not convinced that he has addressed them all. I am still unclear on the point, which he did not answer, on the enforcement or monitoring powers of the Surveillance Camera Commissioner. He said that it was a statutory duty on local authorities or the police, so the fear of judicial review would ensure that they carry this out. My experience of local authorities is that the fears of the cost of judicial review often lead them not to take an action that they would otherwise take. My fear would be that the costs of a judicial review—and there are 12 principles under which they could be judicially reviewed—could lead a number of local authorities to say that they will just not bother with this because it is too much effort.

I am disappointed that the Minister described what I think are genuine concerns as hyperbole. The place to question such issues is your Lordships' House; that is our role, as well as scrutiny. I am sorry that the Minister was unhappy with that position.

On the final order, the Minister said that there have been no applications to destroy biometric information, and none had been destroyed. Can I take it that that means that there have been none over three years old? Those are a couple of points that were not raised. I shall take this back and read the Hansard to see from what has been said whether my points have been addressed.

Motion agreed.