Opposing the Database State – Clause 152 of the Coroners and Justice Bill


Wednesday, March 4th, 2009. 4:32am

Phil Booth of No2ID speaking at the Convention on Modern Liberty
On Saturday the 28th of February NO2ID organised a “Convention on Modern Liberty” held in various locations “across the UK”.

A satellite meeting , which I attended, was held in the Cambridge Union.

This article focuses on just one of many important items which were discussed during the day. Clause 152 of the Coroners and Justice Bill which is currently going through Parliament. It was introduced at the convention by Phil Booth (Pictured), the national coordinator of NO2ID. Mr Booth said:

In a minute that I’ve got I’m going to ask you to do something. Not only that I going to ask you to get others to do it as well. It is important. It is urgent and it is something that only you can do. We have been warning for years about the stated intention governments to overcome current barriers to information sharing within the public sector. Now they are poised to slip something into the statute books that is absolutely extraordinary; the reversion, or the reverse of the Data Protection Act. A power which would allow any minister, by order, to alter any act to cancel confidentially, to ignore consent, and to use any information gathered for one purpose for any other. This one clause is a grave threat, or as grave a threat to the civil liberties as the entire ID scheme, in No2ID’s estimation. Combine it with the index to your life created by the proposed National Identity Register, everything recorded about you anywhere could be accessible to any official body. That’s your information, your family’s information, taken for one purpose, arbitrarily used, without your consent, and maybe even knowledge for any other purpose.

Clause 152 of the Coroners and Justice Bill must be stopped. We can do it together, but only if we act now. Please, when you go home tonight or tomorrow, or Monday at the latest, but keep on going, write and tell your MP. If you haven’t done this before you can do this very easily over the internet by going to a website called http://www.WriteToThem.com and tell them, just simply that you refuse your consent for anyone to be given the arbitrary power to share your information under any information sharing order. It is imperative that your MP understands that you have refused consent. Please also ask that he or she vote against or vote to have clause 152 removed completely from the Coroners and Justice Bill but make sure that you tell your representative that you refuse your consent to this. Thanks for your attention, you’re going to hear lots of stuff today but please do remember clause 152. Thank you.

Safeguards?

At first glance there do appear to be safeguards contained within the bill, there are provisions for draft “Information Sharing Orders” to be laid before Parliament along with a copy of the Information Commissioner’s report on the order. This sounds impressive, it appears to state that there is to be proper well informed Parliamentary scrutiny of all individual such orders and might be taken to suggest Mr Booth is be making a fuss about nothing. However Mr Booth is right to be worried, this is very broad legislation which gives an incredible power to ministers and undermines the data protection act. It really is legislation which could enable the creation of a national identity database full of detailed information about all of our lives. The safeguard, of having proposed orders “laid before Parliament”, is not sufficient because that process is not what it sounds like. Having an order “laid before Parliament” does not mean it is discussed, debated and approved by both houses of Parliament. Often government ministers and departments imply that is what it does mean, and this is very misleading. In practice though there is no debate, and “laid before Parliament doesn’t even mean published and drawn attention to on the Parliamentary website. The only “safeguard” is the House of Lords “Merits of Statutory Instruments Committee” which tends to determine “that the special attention of the House need not be drawn to [the secondary legislation] ” which is then considered approved without debate or a vote. There does not appear to be an accessible procedure for MPs to force a debate and vote

I became aware of this by following the progress of amendments to the PACE codes, the Home Office and others regularly make statements such as : “PACE Codes Amendment Order and the revised PACE Codes of Practice will shortly be laid before Parliament for debate in both Houses” *. While there have been debates in the Lords (1,2) on amendments to the PACE codes, recent amendments have not been debated in the commons. This is not the safeguard it appears to be. Massive reform is needed in the system for Parliamentary approval of secondary legislation; in cases such as the PACE Codes and Information Control Orders there should actually be scrutiny.

Clause 152 in Committee

I don’t need to write to my MP to draw his attention to clause 152 as Cambridge’s MP David Howarth has been leading the opposition to this proposed new law in Parliament. He spent a day or so last week in committee on the subject.

David Howarth said in the committee that this clause had to be looked at in the context of a report released recently by David Omand, a former security and intelligence coordinator in the Cabinet Office and former Permanent Secretary in the Home Office. Mr Omand’s grandly titled report: The National Security Strategy: Implications for the UK intelligence community was also mentioned as key background by a number of people during the convention on modern liberty, it was quoted by Mr Howarth when he spoke at Cambridge.

When Mr Howarth said “We must discuss it [clause 152] in the context of Sir David Omand’s paper for the Institute for Public Policy Research, which, at the least, revealed the breadth, scope and depth of central Government’s ambitions in the matters of data collection, data mining and invasions of the privacy of individuals.” I believe he was primarily referring to the following paragraph:

“… the growth of a third category of information from which intelligence for national security may be derived, one that might be labelled ‘protected information’, or Protint. This is personal information about individual that resides in databases, such as advance passenger information, airline bookings and other travel data, passport and biometric data, immigration, identity and border records, criminal records, and other governmental and private sector data, including financial and telephone and other communications records. Such information may be held in national records, covered by Data Protection legislation, but it might also be held offshore by other nations or by global companies, and may or may not be subject to international agreements. Access to such information, and in some cases the ability to apply data mining and pattern recognition software to databases, might well be the key to effective pre-emption in future terrorist cases. Such sources have always been accessible to traditional law enforcement seeking evidence against a named suspect already justified by reasonable suspicion of having committed a crime. However, application of modern data mining and processing techniques does involve examination of the innocent as well as the suspect to identify patterns of interest for further investigation. Obtaining international agreement on the sharing of such data will become increasingly important in order to ensure access to these vital sources. Privacy issues also arise over other sources of information on the movements and activities of individuals, revealed by technology such as CCTV or automatic number plate readers, again with future potential for smart recognition software to be applied to mine such data for intelligence and law enforcement purposes.

This latter point, about wanting information on everyone (for example on the movement of all cars) to enable it to be mined for information of interest to the state was made by Government Minister Bill Rammell MP when he spoke in Cambridge. Under exemptions included in the Data Protection Act data-sharing is already allowed to prevent crime, fraud and tax evasion. Personally I am not happy about the emergence of the national ANPR camera network, and believe that details of my travel ought only be available to the state following a system of authorisation akin to the issuing of a search warrant, or at least “RIPA Authorisation”.

David Howarth speaking in the bill committee stated:

We really ought to be worried about the breadth of these powers. They threaten to undermine, for example, the privacy of medical records, the scope of the use of the identity card database and any restrictions on the use of the DNA database.

The DNA database example is especially relevant, because using DNA in a criminal investigation is very different from using DNA for all the other purposes for which it could be used by the state or others.

Even a member of the Labour Government, David Kidney, appeared to agree there were problems with the bill saying:

The fact that observers fear that medical records could go willy-nilly everywhere under the clause shows that it is too widely drawn and needs restricting.

He went on to suggest that the amendments being considered by the committee did not go far enough to allay these concerns. Yet as far as I can tell he did not support opposition MPs in their attempts to amend the clause.

During the committee’s discussion of the clause MPs disagreed on the advice they were receiving from the Information Commissioner, with Labour’s George Howarth saying:

The commissioner wrote the report that recommended the fast-track procedure to enable data sharing to take place

However Conservative Henry Bellingham observed:

I do not believe that he [The Information Commissioner] wanted to see the Government take for themselves the extra powers to share data—between Departments, as well as with the private sector. He did not want that at all; he was tactful when he spoke to us, but to me he looked uneasy and far from happy

David Howarth said that the Information Commissioner:

strongly object[s], to the possibility of using an information-sharing order to override the provisions of the Data Protection Act.

Labour MP George Howarth defended the clause, saying that the inclusion of a requirement for “reasonableness” was a sufficient safeguard which would be enforced by the courts following legal challenges to any unreasonable data-sharing. In my view he was shirking responsibility and passing off onto the courts decisions which ought to be made democratically in Parliament. I do not believe it is reasonable to assume the accessibility of the legal system and awareness of the data sharing will be such that individuals will be able to use the courts to ensure their information is used appropriately by those who handle it.

David Howarth expressed his underlying concern with clause 152 as being:

That it has become a habit to draw up such statutory powers over-broadly. That is how the problems of detail are solved—not by thinking hard about them and being more specific. It seems that the tendency is to solve them by saying, “We will grab the broadest possible power and leave the problems until later. That is not good enough. Our duty as parliamentarians is to ensure that the powers are incapable of being used in an inappropriate way.

Mr Bellingham noted the background to these proposals of increasing erosion by the Government of civil liberties and privacy saying:

The other thing that worries me is that the Government are becoming increasingly illiberal. … If one looks at the national ID card scheme, the extra powers that bailiffs have to break in and enter people’s homes to enforce not Crown court or magistrates court debts but civil debts and the other hare-brained schemes that they have come up with, one sees that they are becoming more and more illiberal. In the Bill, we have secret inquests, and now the data-sharing proposals, which just go too far.

Conservative MP Mr. Garnier drew attention to the convention on modern liberty during discussion of clause 152, saying:

On Saturday, in London and across the country, an event called the convention on modern liberty is being held. It will represent the most concerted coming together yet of people who are concerned about the destruction of our democratic way of life. I shall attend that event and contribute to it, and I hope that I will see members of the Labour party there too to speak out against this and many other similarly egregious provisions that the Government see fit to impose on the people of this country.

The amendment voted on was: “in clause 152, page 100, leave out lines 24 and 25″
The HTML copy of the clause with line numbers published on the committee’s website indicates that amendment would result in nonsense. However the PDF reveals its intention to be:

Original:

For the purposes of this Part a person shares information if the person—
(a) discloses the information by transmission, dissemination or otherwise making it available, or
(b) consults or uses the information for a purpose other than the purpose for which the information was obtained.

Amended:

For the purposes of this Part a person shares information if the person—
(a) discloses the information by transmission, dissemination or otherwise making it available, or

I don’t think this amendment went far enough, I would have liked to have seen David Howarth attempt to delete the clause entirely, and push for a new bill, an amendment to the Data Protection Act, dealing only with any specific cases where data sharing could be justified and exemptions to the Data Protection Act are warranted. In terms of information sharing to improve service provision, even sharing basic information such as the fact someone has died is something which has to be carefully considered. In a future “database state” one mistake such as you being accidentally marked in the database as dead could have devastating consequences on your ability to drive, travel, bank, shop, make phone calls, use a computer and generally function in society.

The committee decided that “Clause 152 ordered to stand part of the Bill”, they did not amend the clause. The committee’s deliberation of the bill is expected to be over by the 5th of March. The committee will “Report” its deliberations to the House of Commons, this will be followed by the bill’s “third reading debate”. It is usual for these to occur about two weeks after the end of the committee stage, so are expected towards the end of March.

Letter to My MP

Dear Mr Howarth,

I would like to thank you for your hard work in Parliament last week opposing clause 152 of the Coroners and Justice Bill which if enacted would lay the foundations for a “Database State”. I would like to let you know you have my support in what I expect will be your continued fight against these proposals for unlimited data-sharing in the upcoming weeks.

I would like to see you making the most passionate and persuasive speech of your career when this clause is next debated in the House of Commons; highlighting the broad brush nature of the legislation and the inadequacy of the safeguards contained within the clause. It is not acceptable for Parliament to expect the courts to enforce “reasonableness”. I do not believe it is reasonable to assume the accessibility of the legal system and awareness of the data sharing will be such that individuals will be able to use the courts to ensure their information is used appropriately by those who handle it. Having Information Sharing Orders “laid before Parliament” is no assurance of proper scrutiny at that stage either (It should be and there’s a need for reform in the way Parliament “approves” secondary legislation).

I believe you ought propose clause 152 is dropped completely from the bill; if there are specific areas where additional exemptions from the Data Protection Act are required these ought be considered individually in an amendment to the Data Protection Act. This will enable informed public debate and strengthen democracy.

Should you and your colleagues in opposition fail, I would like to make it clear now that I do not agree to any of my information being shared under an “Information Sharing Order” without my express consent.

I do not require a reply, if you do reply I would prefer a reply by email.

Many thanks

[...]

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I have written previously opposing inquests without juries, something else this bill attempts to bring in.

I attended the Convention on Modern Liberty as I am very concerned about the slow erosion of our civil liberties and privacy which we have seen under the current government. I oppose the government’s national ID card scheme which is already in operation for some sections of society, I oppose the DNA database holding information on innocent people, I oppose the excessive use of CCTV and RIPA powers, and am concerned about the move towards a database state. I was astonished and appalled at the recent suggestion that the UK has been complicit in the torture of Binyam Mohamed and am relieved that public opinion is now turning against extensive detention without trial for terrorist suspects. I am also disconcerted by the way we treat those in detention centers in the UK. I attended to listen and learn so I will be able to campaign effectively against the current government’s plans, and to hear to the arguments presented by various groups and individuals as well as the Government.

3 comments/updates on “Opposing the Database State – Clause 152 of the Coroners and Justice Bill

  1. John Lawton

    Richard, thanks for reporting on this. I agree with your comments, execpt that the rate of erosion of our civil liberties does not seem slow to me – it appears to be accelerating!

  2. Pingback: ID in the News» Blog Archive » Maude: civil servants must ‘overhaul’ personal data sharing

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