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Data sharing to be dropped from Coroners and Justice Bill?

Posted by James Hammerton @ 1:57 pm on 8 March, 2009.
Categories privacy and surveillance, British politics, the database state, accountability.
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Update: Spy Blog takes a distinctly sceptical view of the reports mentioned below.

Reports in the Telegraph, the Observer and the Daily Mail all suggest that the data sharing clauses of the Coroners and Justice Bill are to be dropped. From the Telegraph:

Jack Straw, the Justice Secretary, is to shelve proposals which critics said would have led to patients’ confidential medical records being passed to third parties.

A spokesman for Mr Straw said the “strength of feeling” against the plans had persuaded him to rethink.

The proposals will be dropped entirely from the Coroners and Justice Bill, and a new attempt will be made to reach a consensus on introducing a scaled-back version at an unspecified stage in the future.

“He has looked at it and he now wants to withdraw the clauses. We have asked Cabinet colleagues to agree to this,” said Mr Straw’s spokesman.

“Jack recognised the strength of feeling and he recognised that the clause was drafted in a way that was too wide, and so needed to be looked at again.

“He understood that this issue had touched a nerve for a lot of people, and he understood why.”

And:

Last week more than 30 groups wrote to Mr Straw outlining their concerns that the proposals would allow the government to disclose “almost limitless” personal details about individuals, and even pass the records to private companies.

Bodies including the Royal College of Psychiatrists and the Independent Schools Council said the measures were “among the most wide-ranging and potentially intrusive proposals ever laid before Parliament”.

Other signatories to a joint letter of protest included Claire Rayner, the president of the Patients Association, Professor Dinesh Bhugra, president of the Royal College of Psychiatrists, and Bob Oddy, general secretary of the Licensed Taxi Drivers’ Association.

It was also backed by Neal Lawson of the left-wing pressure group Compass and Professor Richard Parish, chief executive of the Royal Society for Public Health.

It looks as if the backlash against the idea is forcing the government to back off. The critical questions left now are:

  • When will the new proposals come forward? If they’re put forward in the current parliamentary session, then the government can have them in force before the next election, unless they get defeated. Thus if they’re still objectionable, there’ll still need to be another fight to stop them. If they’re delayed until the 2009-2010 parliamentary session, then there’s a chance the bill will fall when the next general election is called. Thus a demonstration of opposition might merely need to delay the bill.
  • How limited will the new proposals be? It would not be surprising if the government put in some token “safeguards” and claimed they’d listened to criticism. There is a risk that any “fast track” mechanism will be misused by ministers and that the proposed safeguards will be ineffectual. Personally I regard the only remotely adequate safeguard is for any proposed sharing of personal data to be given full parliamentary scrutiny in the form of primary legislation. We need to stop giving ministers enabling powers that allow them to bypass parliamentary debate and scrutiny by putting their proposals forward as statutory instruments.

In the meantime, I await the removal of the data sharing clauses from the Bill.

Update on data sharing proposals

Posted by James Hammerton @ 7:04 pm on 21 February, 2009.
Categories privacy and surveillance, British politics, the database state, accountability.
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Regarding the proposed power to allow Ministers to order data sharing via statutory instrument, I thought I’d post an update on recent developments:

  • The British Medical Association have claimed that the data sharing powers will jeopardise medical confidentiality:

    Dr Hamish Meldrum, chairman of the British Medical Association, told the Guardian that the profession was “extremely concerned” about legislation tabled by Jack Straw, the justice secretary.

    Clause 152 of the Coroners and Justice Bill would allow the Department of Health to share information on NHS databases with other ministries and private companies.

    Health ministers have no immediate plan to make use of the power, which would give all Whitehall departments a fast-track procedure for getting permission to share data without parliamentary debate.

    The NHS is proceeding slowly with a scheme to upload the medical records of everyone in England on to a national database known as the Spine. Ministers have given frequent assurances to patients that the information would only be accessed by healthcare staff who need it.

    But Meldrum said patients could not know whether future ministers would abide by this undertaking. According to the BMA, the trust between doctors and patients would be destroyed if Straw’s bill, as it stands, became law.

    Meldrum told the Guardian: “The bill gives any minister the right to access patient-identifiable information - and give others access to it. There appears to be no limit to what could be done with this information as long as the minister can make a vague… justification, claiming that sharing the information is in line with government policy at the time.

    “The doctor-patient relationship is built primarily on trust that information is given confidentially and will not normally be shared without the patient’s consent. Once we go down the road where that principle can be breached, widespread possibilities could flow.”

  • The British Computer Society and the Information Commissioner’s Office have also both criticised the proposals:

    The Bill would allow one of the central principles of the DPA – that information collected for one purpose by one organisation should not be used by another organisation for another – to be set aside.

    It would allow ministers to issue an “information sharing order” as long as this will be in support of a public policy and held to be in the public interest.

    The BCS said this would “devalue the principle of informed consent that lies at the heart of the DPA” which could “heighten distrust that citizens have of government and central initiatives” and have “disastrous consequences in the hands of a less benevolent government.”

    It also argued that the measures might not survive a challenge under Article 8 of the Human Rights Act, which guarantees a respect for private and family life.

    In a commentary on its website, the ICO said the measures should be restricted to “precisely defined circumstances in which there is a legal barrier to information sharing that would be in the public interest” and that “large scale data sharing initiatives that would constitute significant changes to public policy” should be excluded.

    It also argued that it should be stated explicitly that any data made subject to an information sharing order was still protected by the DPA and the Human Rights Act.

  • The Out-law.com website covers the Information Commissioner’s Office concerns in more detail:

    The ICO has released its second opinion on the contents of the Coroners and Justice Bill, which proposes legalising greater sharing of information between Government departments and with outside contractors and private companies who request it.

    When the Bill’s proposals were first published, the ICO was less critical.

    “Some have suggested that the Bill’s information sharing provisions represent an unwarranted interference with the privacy of personal information. We do not agree. The provisions of the DPA will continue to apply to the sharing of personal information whether undertaken within the scope of an information order or otherwise,” said its opinion, published on 22 January.

    The ICO now believes that the proposed new law poses some dangers to privacy and for Government’s accountability for the processing of personal data it has collected.

    “The Bill’s information-sharing provisions are too wide, and its safeguards relatively weak,” it said. “The provisions should only apply in precisely defined circumstances where there is a legal barrier to information sharing that would be in the public interest.”

    Rosemary Jay, a privacy law expert at Pinsent Masons, the law firm behind OUT-LAW.COM, warned of similar concerns when the Bill was published.

    “It would allow for information to be shared with banks or other financial institutions,” she said in January. “There is no restriction on purpose of the sharing so for example it would enable the Minister to make an order empowering the tax authorities to disclose the earnings of individuals to credit reference agencies.”

    Jay said that such disclosures could be made without the person whose information is being shared ever knowing about it.

    The ICO is also concerned that the law will allow Government to make major changes in the field of information law without consulting Parliament.

    “The Bill needs an additional safeguard, to prevent the use of information-sharing orders in the context of large-scale data sharing initiatives that would constitute significant changes to public policy,” said the opinion.

    The Bill allows the ICO to investigate Government departments it suspects of not processing or sharing information properly through the issuing of an assessment notice.

    “The Assessment Notice provisions need to be widened, so the Information Commissioner can serve an assessment notice on any data controller,” said the ICO’s latest opinion. “The risks can be just as great outside the public sector and the boundary lines between the sectors are increasingly blurred. The House of Lords Select Committee on the Constitution supported this conclusion at paragraph 238 of its recent ‘Surveillance: Citizens and the State’ report.”

  • The Coroners and Justice Bill passed its Second Reading in the House of Commons and is now in the Committee stages. NO2ID has covered the second reading debates and votes on their discussion forums, including links to transcripts of the debate and a list of how MPs voted. 278 MPs voted to allow a second reading, whilst 47 opposed. The NO2ID forums have also covered the Committee Stage debates that have occurred so far.

More on Britain’s War on Photography

Further to my recent article on Britain’s war on photography, I came via UK Liberty across septicisle’s excellent article on his blog “Obsolete” about the new powers in Section 76 of the Counter Terrorism Act 2008:

With this in mind, it’s incredibly easy to be greatly cynical about the new offence created in the latest and greatest “Counter-Terrorism” Act. Contained in section 76 is the criminalisation of “[E]liciting, publishing or communicating information about members of armed forces etc“, which you would imagine ostensibly is intended to stop individuals, such as those convicted of plotting to kidnap and behead a Muslim soldier, from compiling information on potential targets, whether it be home addresses or photographs of soldiers themselves. That alone is contentious; what is even more contentious is that this covers not just members of the armed force and the intelligence services, but also humble police constables.

It’s rather difficult not to connect this directly to what has become more than just individual, jumped-up officers of the law asking members of the public what they’re doing when they’re seen taking photographs of almost anything, as has become almost routine for some whose simple pleasures including taking pictures of buildings, or even getting a camera out in the vicinity of children. While this does not directly cover that, what it will directly cover is the photographing of police officers, which has also become something of a point of concern, with those photographed routinely demanding that such pictures be deleted, even going so far as to confiscate the devices if they’re digital and doing it for them. This has been especially noted on demonstrations, where ironically there are now almost always dedicated teams of officers, known as Forward Intelligence Teams, who film and take photographs of everyone, regardless of whether there is even the slightest likelihood of violence or the breaking of the law. FIT was originally set up to monitor football crowds for hooligans; now those exact same methods are used to do little more than intimidate peaceful protesters.

In response, the likes of FIT Watch have been set up to give the officers a taste of their own medicine. It could be argued that the archives of FIT Watch could be used by those with less salubrious methods to target officers for far more than just tit for tat gestures, but the chances of this seem to be negligible. Rather, what section 76 does is simply put into law what the officers have already been unofficially practising for some time.

The consequences of this could not potentially be more serious. It essentially means that anyone who comes across an instance of the police abusing their powers and manages to record it can have their evidence destroyed with next to no powers of appeal. It will further empower officers to intervene with photographers regardless of what they are doing. It in effect gives carte blanche to the police to stop anyone from recording almost anything, with the excuse being they themselves might be the ones being targeted. Furthermore, because of the vagueness of the legislation, which is almost certainly deliberate, it’s up to the police and the courts themselves to intrepret when there was a breach. It’s a recipe for completely disempowering the individual while empowering the authorities of the state to do almost whatever they feel like, with little sanction for appeal.

Trial of CCTV cameras that also listen in Glasgow

Posted by James Hammerton @ 6:03 pm on 15 February, 2009.
Categories privacy and surveillance, British politics, accountability, culture of suspicion.
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BBC News in Scotland reports:

But teaching a computer system to recognise the specific characteristics of aggression has taken more than a decade, building on research at the University of Groningen.

Bram Kuipers explains how the system operates

Sound Intelligence say Sigard is able to discriminate between the sound of aggression and other, everyday loud noises like passing trucks and car horns.

Kuipers demonstrated this by clapping his hands. A display screen noted the sounds but took no action. Then he shouted aggressively. This time an alarm sounded and a CCTV camera spun round to look directly at the source of the shouting.

Such systems are already in everyday use on the streets of several Dutch towns and cities. The company said it also has uses in potential flashpoints like prisons and benefits offices.

There are hopes eventually to sell Sigard in other markets - hence the Glasgow trial.

“We installed a couple of microphones in one of the main streets of Glasgow,” Kuipers said.

“It’s working. We detected aggression and it’s currently under evaluation.”

Reminder: The Convention on Modern Liberty (28th February)

Just a reminder that on the 28th February, the Convention on Modern Liberty gets underway in London with parallel sessions in Glasgow, Belfast, Manchester, Cardiff, Cambridge and Bristol.

Britain’s legislative incontinence

Posted by James Hammerton @ 6:03 pm on 8 February, 2009.
Categories democracy and the rule of law, British politics, accountability.
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Via UK Liberty, I found John Ozimek’s article in the Register, describing the problems the courts are having in keeping up with the law:

Late last year, an appeal in R. v. Chambers [2008] EWCA Crim 2467 was halted at the 11th hour when it turned out that the regulation which the defendant was appealing and under which he had previously been found guilty had in fact been superseded by new law… some seven years previously.

This only came to light when a draft judgment on the case was passed to a lawyer at Revenue and Customs, who spotted the error and instantly alerted the court. Confusion all round, and while the court dialogue didn’t quite match exchanges regularly heard under the jurisdiction of the infamous Justice Cocklecarrot, it is possible to detect prosecution counsel shrivelling beneath the displeasure of Lord Justice Toulson

Echoing recent comments by Lord Phillips, head honcho in our legal system, Lord Justice Toulson blamed this chaos on four factors - first, that “the majority of legislation passed today is secondary legislation”. That is, it is not passed directly by parliament, but is the result of Ministers laying regulations before parliament (statutory instruments).

Then, “the volume of legislation has increased very greatly over the last 40 years”. In 2005 alone, there were “2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments” – to which should be added another 5,000 pages of European Directives and Regulations, plus the outpourings of our new devolved assemblies.

Assuming a page can be read every 5 minutes, then an MP would have to spend 79430 minutes reading the Acts of Parliament and the SIs for 2005 alone. That’s over 55 days of continuous reading, or over 165 days of reading continuously for 8 hours (almost 30 devoted to the Acts), just to read each of 2005’s SIs or Acts once. How on earth can MPs provide even remotely adequate scrutiny of legislation given such volumes of it to read? SIs of course are given the barest minimum of scrutiny - they cannot be amended, and (at best) there is only one vote in each House to approve them after a 90 minute debate.

The above calculation excludes European Directives and the explanatory notes that accompany Acts of Parliament and SIs. In his book “How to Label a Goat”, Ross Clark notes (on page 239 at the start of Chapter 18) that in the year starting June 1 2005 there were 29 Acts of Parliament, with 3592 SIs. Once you included the explanatory notes for this legislation, you had a total of 100,000 pages to read.

That’s equivalent to over 1041 working days worth of continuous reading. Even if you could reach a page per minute, it’s still over 208 working days of reading. And that’s just 1 year’s worth of legislation and supporting documentation.

And they say ignorance of the law is no excuse.

Momentum is building against the erosion of civil liberties in Britain

There definitely seems to be an increase in activity focused on the erosion of civil liberties in Britain.

Not only do we have the government backing down on trying to make MPs expenses secret after a concerted web campaign against the proposal, the Liberal Democrats launching a commission on privacy and the upcoming Convention on Modern Liberty, but now the Guardian has launched a new Comment is Free site, called Liberty Central, dedicated to discussing the erosion of civil liberties. Georgina Henry explains:

On the plus side, however, there is a growing number of journalists, bloggers, lawyers, MPs and civil liberties and human rights groups who tirelessly track this process, trying to unravel its complexities and stay on top of the relentless march of legislation. Their belief that we are at a particularly dangerous moment in the erosion of our fundamental rights is the driving force behind the Convention of Modern Liberty, called for the end of February (see below for details).

It’s also the reason why today we’re launching a new Comment is free site, liberty central, both to reflect and focus the debate, and as a resource to keep you abreast of legal and political developments.

The site will be the home of Henry Porter’s blog and his columns from the Observer, where for the past three years he has forensically and ferociously tracked the assault on civil liberties, in the process becoming the best informed writer on these issues, as well as a must-read for those interested in the debates. (Reread his first campaigning piece, published three years ago, on the growth of state power in the name of the so-called “war on terror”.)

The site will also contain an A to Z of key legislation of the last decade – ie all published and enacted by the Labour government – which will act as a constant reference point for readers. Read the Guardian’s legal correspondent, Afua Hirsch, on the importance of such a guide and what you can expect to find in it.

We’re also, with many thanks to the civil and human rights organisation Liberty, hosting a weekly clinic, where their specialist lawyers have agreed to answer readers’ queries.

Campaigners win battle to stop MPs from making their expenses secret

Posted by James Hammerton @ 9:32 pm on 21 January, 2009.
Categories political liberties, British politics, accountability, freedom of information.
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The British government has cancelled a vote on proposals to make MPs expenses secret.

Blogger’s summit at the Convention on Modern Liberty

Logo for Convention on Modern Liberty

Sunny Hundal, blogging at Liberal Conspiracy, has posted his own take on the Convention on Modern Liberty. In particular he highlights the Blogger’s Summit:

So, what does this mean for you?

openDemocracy have been kind enough to offer a special panel discussion for bloggers, which will be organised by Liberal Conspiracy. I would like to give an activist feel, not just a space for a calm talking-heads discussion with people coming out more frustrated than they went in.

Over the coming weeks, we need to ask:
- how we should look at privacy differently;
- how different powers affect our liberties, uniting football fans, clubbers, Muslims and even technologists.
- what can be done about it.

Ideally, I’d like to see a situation where, by the time we get to the event, we are looking to get organised and move forward, not just reiterate the issues that could have been discussed online anyway.

In my view the Convention has the potential to be a turning point leading to the halting and reversal of the erosion of civil liberties over the past 10 to 15 years in the UK. If people think hard about what needs to come out of the Convention, as Sunny suggests here, it will help to ensure that the Convention will become such a turning point.

[Thanks to Guy Aitchison, for alerting me to Sunny’s article.]

Britain’s proposals to allow sharing of personal data

Posted by James Hammerton @ 6:30 pm on 18 January, 2009.
Categories privacy and surveillance, British politics, the database state, accountability.
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The Coroners and Justice Bill was recently published and contains amendments to the Data Protection Act enabling government ministers to order the sharing of personal data.

To summarise:

  • Ministers at both Westminster and the devolved administrations will be able to issue “information sharing orders”(ISOs) that enable any person to share information that consists of or includes personal data, subject to conditions outlined below.
  • A Minister making an ISO must be satisfied that:
    • the sharing of information enabled by the order is necessary to secure a relevant policy objective.
    • the effect of the provision made by the order is proportionate to that policy objective, and
    • the provision made by the order strike a fair balance between the public interest and the interests of any person affected by it.
  • An ISO must specify the person or class of persons enabled to share information, the purposes for which the information may be shared and the information or class of information that may be shared.
  • An ISO may not enable any sharing of information which (in the absence of any provision made by the order) would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.
  • An ISO may:
    • confer powers on the person in respect of whom it’s made.
    • remove or modify any prohibition or restriction imposed on the sharing of information by that person or on further or onward disclosure of information.
    • confer powers on any person to enable further or onward disclosure of the information
    • prohibit or restrict further or onward disclosure of the information
    • impose conditions on the sharing of information
    • provide for a person to exercise a discretion in dealing with any matter
    • enable information to be shared by or disclosed to the Minister making the order
    • modify any enactment
    • create offences punishable by upto 2 years in prison
  • Ministers are entitled to make ISOs only for purposes relevant to the departments they are in charge of.
  • A Minister proposing to make an ISO must allow a consultation with representations from those likely to be affected by the order, submit a draft of the order to the Information Commissioner and allow 21 days for the Information Commissioner to make a report, before putting the order before Parliament (or in the case of Scottish Ministers the Scottish Parliament).
  • ISOs will be made be statutory instrument requiring approval of both Houses of Parliament (or in the case of orders made by Ministers in the devolved administrations, approval of their respective legislatures).

In short, this will allow government ministers to order the sharing of personal information for any purpose they see fit. Note that the orders can even modify any legislation that might get in the way.

The government will claim that the requirement to consult and get a report from the Information Commissioner will be “safeguards”, but these requirements are fig leaves that will do nothing to stop a government intent on getting its way; a delay of 21 days is not much of a delay.

The government will also tout the requirement for a vote of approval from Parliament as a “safeguard”, but the level of scrutiny an ISO will get is minimal (statutory instruments often get only a 90 minute debate before being voted on) and the government will be in control of the procedures and timetable of Parliament.

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