Whilst the UK press is focusing on the “love-in” between the Liberal Democrats and the Conservatives now in coalition government, it might be useful to put on record what the parties have agreed in their plan to “implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion”. Equally important is to recognise what “did not make the cut” with respect to that agreement.
Why is this important? Well we are in the honeymoon period for the coalition and the marital stress has yet to surface; sometime in the future, there will be a need to reflect on the promises made in these halcyon days. Also, it is important to realise that the coalition agreement has been forged without input from the Civil Service. Remember back in 1997, when the Human Rights Act was almost the first legislative act of the Blair Government. One suspects subsequent Labour Home Secretaries regretted that move ever since.
The Data Protection Act 1998 and the Freedom of Information Act 2000 are relatively weak because when the measures were before Parliament, they were “Home Office Bills” subject to the full panoply of Home Office advice. The Home Office has an inherent conflict of interest as its law enforcement functions in policing, national security and immigration support further invasion of privacy and secrecy rather than the reverse. It is not surprising that the result is weak legislation.
THE TEXT OF THE AGREEMENT LINKED TO THE MANIFESTO COMMITMENTS
The coalition promises “A Freedom or Great Repeal Bill”. In their manifestos, the LibDems promised to “Introduce a Freedom Bill” whilst the Tories wanted to “replace the Human Rights Act with a UK Bill of Rights”. There is a problem here: The LibDems want to “ensure that everyone has the same protections under the law by protecting the Human Rights Act” whereas the Tories want to “replace the Human Rights Act with a UK Bill of Rights” (i.e. water it down in some respects – especially in the area of terrorism). However, I should add that the Conservatives have not promised to derogate from the Human Rights Convention so that their “Bill of Rights” cannot deviate too much from the current human rights arrangements.
The coalition promises “The scrapping of ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database”. This is common ground: the LibDem manifesto promised to “Scrap intrusive Identity Cards”, “scrap plans for expensive, unnecessary new passports with additional biometric data and “Scrap the intrusive ContactPoint database which is intended to hold the details of every child in England”. The Tories said: “We will scrap ID cards, the National Identity Register and the Contactpoint database”.
The coalition promises “Outlawing the finger-printing of children at school without parental permission”. This is only found in the LibDem proposals which promised to “stop children being fingerprinted at school without their parents’ permission”.
The coalition promises “The extension of the scope of the Freedom of Information Act to provide greater transparency”. The Conservative Manifesto promised to “expand the scope of the Freedom of Information Act to include taxpayer-funded bodies such as Northern Rock and Network Rail, together with bodies such as the Local Government Association”. In the background is a Conservative promise of “The Right to Data Act” that will give members of the public a legally enforceable 'Right to Data', so that the public has the right to appeal if public bodies refuse requests for data collected by government. My only comment: a “right to data” in its purest form can only apply to those databases where there is no possibility of an applicable FOI or EIR exemption.
The coalition promises to adopt “the protections of the Scottish model for the DNA database”. This is common ground: the LibDems wanted to “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too”; the Conservatives “to end the permanent retention of innocent people’s DNA” as “the indefinite retention of innocent people’s DNA is unacceptable”.
However, the Conservatives also promised to “collect the DNA of all existing prisoners, those under state supervision who have been convicted of an offence, and anyone convicted of a serious recordable offence”. The extension to "serious" recordable offences, if realised, implies a significant reduction in size of the DNA database that indefinitely retains DNA in relation to "recordable offences"(see blog of 30th November 2009).
The coalition promises “The protection of historic freedoms through the defence of trial by jury”. This appears only in the LibDem manifesto which promised to “defend trial by jury”.
The coalition promises “the restoration of rights to non-violent protest”. The LibDem manifesto which promised to “Restore the right to protest by reforming the Public Order Act to safeguard non-violent protest even if it offends; and restrict the scope of injunctions issued by vested interests”.
The coalition promises a “review of libel laws to protect freedom of speech”. The LibDems promised to “Protect free speech, investigative journalism and academic peer reviewed publishing through reform of the English and Welsh libel laws – including by requiring corporations to show damage and prove malice or recklessness, and by providing a robust responsible journalism defence”.
The coalition promises to introduce “Safeguards against the misuse of anti-terrorism legislation”. This is targeted at local authority use of RIPA powers as the LibDems promised to “stop councils from spying on people” whilst the Tories said they would be “curtailing the surveillance powers that allow some councils to use anti-terrorism laws to spy on people making trivial mistakes or minor breaches of the rules”. The comment I make is that the main problem is not Councils misusing these powers; any misuse of these powers is a result of a weak system of supervision over them. There is a great risk that the symptoms will be treated (misuse of powers by Councils) but the cause (weak regulatory framework) will remain.
The coalition promises “Further regulation of CCTV”. This is the LibDem Manifesto promises that “We will regulate CCTV”. I would add that it is difficult to see what this means as CCTV is already regulated by the Data Protection Act. However, section 36 is a growing problem (domestic surveillance of neighbours).
The coalition promises the “Ending of storage of internet and email records without good reason”. This is the LibDem promise to “End plans to store your email and internet records without good cause”. My own view of this is that I would have thought that all the RIPA purposes (e.g. law enforcement etc) are “good causes” and that nothing will happen. The problem again is not the misuse of RIPA powers but the weak regulatory framework which mandates excessive retention and does not allow for effective supervision of RIPA powers. If you had effective RIPA supervision, free of statutory retention periods, then the DPA would allow a proper balance of interests (i.e. between individuals and needs of law enforcement) to emerge.
The coalition promises “A new mechanism to prevent the proliferation of unnecessary new criminal offences”. This is the LibDem promise to “Halt the increase in unnecessary new offences with the creation of a ‘stop unit’ in the Cabinet Office. Every department in Whitehall would have to convince this unit of the need for a new offence”.
NOT EXPLICITLY MENTIONED IN THE AGREEMENT
The fact that the following list is not in the agreement does not mean it won’t happen; the interesting issue is what does not happen. In fact, most of the LibDem manifesto promises were agreed mainly because I suspect they were easy for the Conservatives to accept. For example, a promise to “review” something does not guarantee a change.
However it is noteworthy that the promise to “Stop unfair extradition to the US” has not surfaced in the agreement. This means that an early test of the Conservative view (given that Foreign and Home Secretaries are both Conservative) will be the USA’s extradition request relating to Gary McKinnon (see blog of 7th October 2009), the hacker who is on the autistic spectrum. The new Home Secretary (Theresa May) has a judgment call to make: she could decide that Mr McKinnon should be tried under the Computer Misuse Act in the UK, or she could decide to make the Asperger’s sufferer the coalition’s first public sacrifice.
The Conservatives promised to “Restore our civil liberties”. Missing from the agreement are the following pledges:
• To “reform the criminal records system so it protects children without destroying trust”
• That “Wherever possible, we believe that personal data should be controlled by individual citizens themselves”. Note: the implementation of the new PECR regulations (see blog of 4th May 2010) will test resolve here.
• To “strengthen the powers of the Information Commissioner to penalise any public body found guilty of mismanaging data” and require “Privacy Impact Assessments of any proposal that involves data collection or sharing” and, “ensure proper Parliamentary scrutiny of any new powers of data-sharing”.
• The “cutting back intrusive powers of entry into homes, which have been massively extended under Labour;
• To “review the criminal records and ‘vetting and barring’ regime and scale it back to common sense levels”.
Many of the "not mentioned" items shouldn't be hard for the coalition to agree - hopefully they will re-emerge in a more detailed programme over the next week or two.
I've also made a few comments at http://dooooooom.blogspot.com/2010/05/deleting-database-state.html
Posted by: Ian Brown | 13/05/2010 at 01:28 PM