A BODY BLOW TO PRIVACY AND CIVIL RIGHTS
BRIEFING
Privacy International
26 January 1997
The Police Bill currently awaiting introduction into the House of Commons will seriously damage civil liberties in the United Kingdom. It gives significant new powers to police to conduct surveillance and gather intelligence without adequate controls to prevent abuses. Labour amendments approved by the House of Lords resolve almost none of the dangers created by the proposals. Because of these grave concerns, the view of Privacy International is that the bill should be scrapped and hearings into current surveillance practices held without delay.
On 20 January 1997, the Police Bill entered its second reading in the House of Lords. The legislative proposals contained in the Bill are set to give the police extensive new powers in conducting surveillance and intelligence gathering operations.
The Government proposals include:
o Extension of the definition of "serious crime" to include "a large number of persons in pursuit of a common purpose" (s. 89 (5) (a)).
o The creation of a National Crime Squad (part 2).
o The legal establishment of the National Criminal Intelligence Service (part 1).
o A national registration scheme to provide Criminal Conviction Certificates to prospective employers (part 5).
The Police Bill, first proposed by the Home Secretary Michael Howard at last year's Conservative Party conference, was introduced to give police additional powers to fight serious crime such as drug trafficking, terrorism and organised crime. Howard claimed it would give "law enforcement agencies the opportunity to use the most up-to-date technology and combat this very real threat to our society". However, the definition within the Bill of serious crime was exceptionally wide, and had the potential to encompass a vast number of people engaged in non-criminal activity.
Up until a week before the second reading, the Police Bill had the full support of the opposition. In the face of growing criticism from civil rights groups, judges and senior Labour peers, shadow Home Secretary Jack Straw executed an eleventh hour turnaround and put forward amendments to the Bill. These amendments included:
o Authorisation to use 'bug and burgle' powers to be approved by "surveillance commissioners" which would consist of at least three senior judges.
o An amendment to the definition of "serious crime" to include "criminal conduct by a large number of people in pursuit of an illegal activity".
These amendments were upheld in the Lords on the Bills second reading, with the government defeated by 64 votes. Opposition from two former Home Secretaries, a former Attorney-General and the current chairman of the Security Commission has prompted an urgent review of the new law and order package. Timetabled for its third reading on the 28th January, the debate surrounding the Police Bill continues to engage public attention.
The new powers proposed in the Police Bill are only the latest in a string of laws which erode traditional freedoms. Others include the Criminal Justice Act (1994) and the Security Services Act (1996). These legislative provisions confirm the fears of many, that Britain is rapidly losing many key democratic safeguards. These fears have been expressed most vehemently over the proposals within the Police Bill for 'bugging and burgling'. The main danger framed within the Police Bill is the institutionalization of a national surveillance system, which threatens a wholesale erosion of personal freedoms and rights of privacy.
Prior to the introduction of the Police Bill, bugging and interference with property has been carried out by the police outside any legal process. Around 2,000 such operations a year are conducted. Under the terms of the Bill, the police will have legal access to anyones' homes and offices, to remove documents, tamper with equipment and plant surveillance devices. In extending the definition of "serious crime", these new powers threaten all forms of group activity, from trade unions and charity workers, to political campaigners and environmental protesters. The government has denied that the powers would be used in such a way, but no specific limitations have been proposed.
According to many observers, Labour's proposed amendments to the Bill are inadequate. The power to "bug and burgle" premises will still apply to criminal activity of any description. This will criminalise road protesters, peace campaigners and animal rights activists. While aggravated trespass and organized demonstrations remain a criminal offence in Britain, any group seen to be involved in such activity may be subject to police surveillance.
Labour claims that in giving "surveillance commissioners" the authority to permit the bugging of premises, any potential abuses of these powers will be eliminated. However, these measures will not guarantee accountability nor will they offer a safeguard against corrupt practices. In the United States, a secret court that approves surveillance for "national security" cases has never denied a request in over 15 years. Civil rights group Liberty suggests warrants to bug premises should be authorised by circuit judges on a rotational system, to avoid "cosy relationships developing between judges and the police".
These intrusive practices, if put on a legal footing, will give limitless scope for law enforcement authorities to redefine criminal activity and prosecute any person or group they see fit. With a license to 'bug and burgle', the police will have legal access to the personal, confidential and private lives of all British citizens. There are already widespread reports of abuses of phone tapping in the UK, including a case pending before the European Court of Human Rights. Given these problems, it is foolish to given the police even more surveillance powers.
The proposed National Crime Squad (NCS) involves two main characteristics. The first is the establishment of a national policing infrastructure which will supersede regional operations and erode existing links between regional police forces and local communities. The second is that the National Crime Squad has the appearance and structure of the F.B.I, and as such is likely to introduce a new range of challenges to civil rights.
The proposals for a National Crime Squad come at a time when national policing and technical standards are converging within a central framework. The NCS will operate in support of other law enforcement agencies such as the NCIS and regional police forces.
Outside of the above, the precise functions of the NCS is unclear. There are no guidelines to explain what role this national agency will perform. It is likely that it will weaken the accountability of the police within local communities, and institute a largely unaccountable centralised policing system.
The Police Bill includes provisions which will put the National Criminal Intelligence Service (NCIS) on a legal footing. In operation since 1992, the main function of NCIS is to gather and analyse intelligence in support of other law enforcement agencies. As information technology continues to extend into all areas, NCIS will combine sophisticated databases with communications technology.
One of the key concerns relating to NCIS, is the lack of control over the quality and type of information which it holds. NCIS is registered with the Data Protection Registrar which monitors the use of its data. However, the Registrar will only investigate NCIS if a request for personal data by a member of the public is denied. Outside of this, no means of accountability or code of practice is in force. Information gathered may include details of a persons political activity, sexual orientation or allegations which have not been tested in court.
The recent McLibel case concerning two animal rights activists being sued by McDonalds is a case in point. Information from the National Animal Rights Index was passed by Special Branch detectives to private investigators hired by McDonalds, and, as a result, four people were charged. These examples and others mirror the dangers and potential abuses that intelligence gathering organizations such as NCIS routinely pose.
The final part of the Police Bill mandates the establishment of a national register which will disclose information relating to criminal records to prospective employers. Any employee seeking work may be asked to provide a Criminal Conviction Certificate, a record of any past convictions or cautions, on the demand of his employer. These certificates will contain information regarding a persons "spent" and "unspent" convictions, as well as formal cautions.
These proposals threaten to dismantle the principles of privacy and rehabilitation that are integral elements of the criminal justice system. The likely effect of such provisions is the escalation of a black list among potential employers. This will create a new pool of unemployable people excluded from the workforce. As 34% of British males have a conviction by the age of 30, these proposals look set to discriminate against vast sections of the population, regardless of the nature of their offence.
The Police Bill is fundamentally unacceptable. It presents substantial threats both to privacy and to a spectrum of freedoms and rights. The proposed law will create a significant deterioration in the relationship between the State and the individual.
The amendments proposed by the Opposition do not ameliorate the deficiencies of the Bill. The amendments fail to address many of the key threats posed by the mechanisms contained within the Police Bill.
The gravity of provisions within the Bill - and in particular the shift toward national policing - should be subject to a wide ranging public inquiry. In the light of the availability of new technologies, the same process should be engaged to inquire into all forms of surveillance.
The definition of serious crime, contained both within the Bill and the Opposition amendments is wholly unacceptable. Common purpose must be removed, while the Labour amendments must be more stringently defined, particularly with regard to criminal activity. Peaceful political and labour activities should be specifically exempted.
The justification advanced by the government that the bug and burgle provisions are necessary to make legal a previously unlawful activity, is not in itself a sufficient defence for such activity. Any trespass and bugging operation must, at the very least, be brought into line with the procedures for phone tapping (i.e. a full warrant application). The method should be limited to the most serious crimes and should be prohibited in investigating peaceful political protests and the media. Police should also be required to prove that they have attempted other methods before requesting a bug and must disclose the existence of the bug to the target after the investigation is completed.
Both NCIS and NCS must be subject to public scrutiny at a national and regional level, and through a mechanism or committee reporting direct to Parliament.
The imposition of wide ranging criminal record checks represents one of the gravest threats to privacy for many years. The requirement that cautions should be revealed must be removed, as should the requirement to reveal spent convictions. Criminal records must be regarded as an extraordinary activity, rather than one which is conventional.
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Briefing by Sheridan Hough, Privacy International, London
Police Bill (1996), HMSO, London
Criminal Justice and Public Order Act (1994) HMSO, London
Security Services Act (1996), HMSO, London
Police Bill : a Liberty Briefing, paper published by Liberty, London, 1996
A certificate please - just for the record, The Observer, 5 January 1997 p. 9
Big Brother is watching you.., the Guardian (education section), January 21 1997, p. 10
Licence to bug and burgle, The Guardian, January 13, 1997, p.5
Police surveillance power must be watched, leader, The Independent, 16 January 1997, p. 17
Bugged by fine liberals, leader, the Independent on Sunday, 26 January 1997, p. 22
Bugging Bill savaged by Lords, the Guardian, 21 January 1997, p. 1
Straw in spy bill U-turn, the Guardian, 17 January p. 1