Government want powers over use and disclosure of DNA, CCTV and ANPR data

The Policing and Crime Bill currently before the House of Lords provides for wide ranging powers in relation to the use and retention of personal data, in particular CCTV and Automated Number Plate Readers (ANPR) images, and personal data derived from DNA samples. Did you know about this? - Probably not. This is because the Government has explained the purpose of the clause in terms of the loss of its ECHR case relating to the national DNA database (i.e. S and Marper v The United Kingdom). The Government has not explained why it wants these powers to also apply to CCTV and ANPR.

In outline, the Government is seeking to acquire extensive powers to use and retain personal data in these sensitive areas. Such powers are likely to significantly reduce the protection afforded by the Data Protection Act, because if the powers stipulate that such personal data are to be retained for Z years for purposes A, B and C, then these purposes and retention periods are lawful.

These provisions have also been introduced in advance of a promised public consultation on DNA retention; does this suggest that the Government might know the outcome of that consultation before the closing date? There never has been a public consultation over the use of CCTV or ANPR images – so the fact that the public have not been provided detailed information on why the Government is proposing that extensive powers should apply to these images is not helpful. Additionally, the fact that secondary legislation is to be used in these areas ensures that, when the necessary detail becomes known, there will be very limited Parliamentary scrutiny.

In my view, this lack of justification or scrutiny is unacceptable – something that the Joint Committee of Human Rights, the Home Affair Select Committee and Constitution Committee have repeatedly echoed in its reports on surveillance and privacy.

The Government also propose a weak system of regulation. This arises because the powers in the Bill allows the Home Secretary to control the functions and reporting structure of the regulator and to have jurisdiction over what is regulated even though the Home Secretary is also politically responsible for the public bodies that are subject to regulation.

My own view is that such a system of regulation is inherently flawed as it does not embrace two basic principles:

1. The regulator has to be totally independent from the Government bodies performing the interference. This means any system of regulation cannot report to the Home Secretary, for instance, if the Home Secretary has political responsibility for those bodies.

2. The regulator’s powers with respect to interference should be proportionate (in a mathematical sense) to the degree of interference. At the moment, there is an inverse proportionality relationship: the greater the ability to interfere, (for example, national security), the weaker the system of regulation.

In summary, the provisions in this Bill propose a situation that is akin to that which would arise if Count Dracula were given the responsibility for policy at the National Blood Transfusion Service and was seeking powers to appoint his own auditors to make recommendations as to the distribution, quantity and quality of the blood supply.

For more details, see our policy document download “Evidence to JCHR re powers in Police and Crime Bill – 2009” on amberhawk.com.