Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 80 - 99)



80.  You do not think they could get away with it, even if they want to.

  (John Wadham) No.

Mrs Dean

81.  Do you have any particular concerns about the Government's proposals to facilitate data sharing between the law enforcement agencies and to enable the retention of data logs by communication service providers?

  (John Wadham) I would refer to page 13 of our notes. The proposal seems to be that communication providers, that is British Telecom and others, would be obliged or encouraged to keep telephone records and that is obviously the billing information you get when you get a telephone bill. You will see at the back of your telephone bill a list of all the calls you made and at what time you made those calls and who those calls were to. Currently the Data Protection Act and the principles ensure that that material has to be destroyed after its usefulness has disappeared. In other words, once you have paid your bill they destroy that material. What the Government want to do is to encourage those communication providers to keep that material on the off chance that it might be useful at some point in the future. They would have to keep millions and millions of records on millions and millions of innocent people in this country just in case at some point in the future it would be useful for gathering intelligence in relation to terrorism. One of our concerns is that, at least it was suggested in The Guardian newspaper yesterday, this new proposal would not be restricted to investigation in relation to terrorism, but would apply in all other criminal activities however trivial. I am not surprised by that because there was a proposal a year ago to do precisely that. There is in fact a draft paper which was sent to the Home Office suggesting that. The question is whether it matters and whether there are protections, but the answers in relation to both of those is that it does matter and there are not sufficient protections. Currently the Data Protection Act has a number of serious exemptions including the prevention of crime, so it means that in most circumstances if a police officer contacts the communications provider and asks for information on the use of John Wadham's telephone and my e-mail access and Internet access and all my telephones at work, they will get it merely on a certificate, on a notice served under the Regulation of Investigatory Powers Act and there is no independent check on that mechanism. So a police officer can basically-self-certify. You do not need a warrant to invade someone's telephone privacy, either from the Home Secretary or anybody else. There are real problems about the amassing of this information and the inadequate safeguards with that information being available to the law enforcement authorities.
  (Professor Gearty) This is a practical example of what I said at the start of these proceedings. We have had RIPA and we have been through all this ad nauseam yet the appetite for restructuring the relationship between the individual and the state seems insatiable on the part of the executive. What have these minor crimes which it is now said might well legitimise these searches got to do with the events of 11 September? There are aspects of this proposal which would need to be looked at terribly carefully to check that there is a causal relation between the mischief at which they are ostensibly aimed and the reality of the power involved.

82.  What about data-sharing between law enforcement agencies? That could have an impact on finding out where the terrorists are and what the terrorists are doing.

  (John Wadham) In a particular example, there is no problem at the moment. If one law enforcement agency says they have reasonable suspicion that this person is up to no good and they want the information, then there is no legal reason why that cannot be disclosed. The problem, if it is a problem, is that agencies cannot share the mass of information involving innocent and other people. You cannot run the Inland Revenue database against the Social Security database, that is something which is not possible under data protection. The reason it is not possible is because inevitably the vast majority, 99 per cent, of people whose information you are sharing with another agency, are in fact innocent of all crimes. We are talking about the mass sharing of data from one organisation to another and that is generally contrary to the data protection principle. If a particular police officer said he wanted this information because this person was in fact a suspect, then he can get that now.

83.  Some would say that the innocent would not mind if the Inland Revenue information were shared with Social Security.

  (John Wadham) I accept that. The evidence on opinion polls and others in relation to privacy is that although most people first say if you have nothing to hide you have nothing to fear, once you get through that process—and people always say it because when they are in a conversation with someone else they feel that they have to establish their bona fides—once that process is over people are very concerned about privacy and they are concerned about privacy in the way they are concerned about healthy food. It is something which is a latent concern. I should say that there is a Cabinet Office inquiry into data-sharing which is about to report on this in general, although it has nothing to do with 11 September.

84.  If tracking were introduced, how easy would it be to avoid being tracked anyway?

  (John Wadham) The difficulty is where to stop. If you carry a mobile phone, not only is the data available about who you called and at what time you called and how long you spoke to them, the reverse information is also true: who rang you. Secondly, because mobile phones work on a cellular basis, it is possible for the communications providers to collect information about where you were at the time that the phone was being used. In relation to that it is a tracking device. I do not want to be overly paranoid. In relation to an individual, if a suspected terrorist were moving around the country, and the police wanted information and they had some reasonable suspicion that this person was a terrorist, I do not have any problem with that information about their movements or their telephone calls being passed to the police. Perhaps there should be some controls on that, perhaps they should have to get a warrant from a magistrates' court or something, but I do not have any problem in principle. What I have a problem with is the mass of this information being collected from everyone and being passed over willy nilly to whoever wants it. That is the nature of this proposal.

85.  If the Government are serious about introducing large-scale traffic analysis are there any additional safeguards which would help?

  (John Wadham) The current arrangements have safeguards because at the moment what the police have to do is to demonstrate that in a particular case they need this information for the prevention of crime or ascertaining criminal activities. That is the current safeguard. If you take away that, then there are real problems. Obviously if the Bill is published we shall look very carefully at what other safeguards can be put in place, but the current system is the safeguard itself and you are fundamentally altering that if you take these next steps.
  (Professor Gearty) Controlling the criteria which permit access will be a key thing really. If it is genuinely engaging in counter-terrorism, then there would be few objections, but if it is spreading into ordinary crime, there is a real anxiety about the extent to which this permits surveillance not previously allowed.


86.  Part of what the Government are intending to do is to oblige communications service providers to hang on to their records for a great deal longer than they are presently obliged to do: six years instead of 12 months, something like that. You are not objecting to that, are you? If you are, it is no good you arguing that you have no objection to the Government using it where it can make a serious case out, because the information would not exist, would it?

  (John Wadham) The Chairman is right to ask that question, because I am making both objections, I am saying that the fundamental nature of data protection is that if you collect information for one purpose, that is to provide bills to individuals who are using telephones, you should not use that for another unrelated purpose. The data protection principle is being violated if you do that. My second practical problem with it is that there is a proportionality issue if, on the off-chance that somebody may be seen to be of interest to the Security Service you collect millions and millions of bits of information on millions and millions of individuals. How far down that road should you go and if you do go down that road of saying you will keep the material for six years, we would want to see greater safeguards than exist in the Data Protection Act, which are currently that the police officers can self-certify their right to access to that. We would say that there should be a judge or some other independent person who should make decisions about whether access to that old material is available. That might be a way of balancing these measures. The National Criminal Intelligence Service were at one stage talking about different options, one of which will be to have a warehouse based somewhere which would have all this information in it and it would not remain with the service providers but would remain in some other warehouse, controlled perhaps by NCIS or the police or someone else. That raises alarm bells as well.

87.  Do you follow my point that there are two separate issues: one is whether you keep all this information, because if you do not keep it you cannot access it even on the strictest terms. You are not objecting in principle to the keeping of the information.

  (John Wadham) I am objecting to the keeping of the information for longer.

88.  Therefore we need not worry about the other matter because it is not possible.

  (John Wadham) I live in the real world and I realise that not everything I say to this Committee will become law next week. In those circumstances obviously if the Government goes ahead with this proposal and we will continue to oppose it, we would obviously want to see safeguards and there are ways in which some of the privacy implications of this can be safeguarded and protected.

89.  On the off-chance that the Government, however remote, does go ahead with these proposals, please feel free to alert us to any safeguards you are suggesting as soon as the opportunity arises. We are all aware the time frame is rather tight.

  (John Wadham) That is a very helpful suggestion, thank you.

  Chairman: Incitement to religious hatred.

David Winnick

90.  Are you opposed as an organisation to what is being proposed, to make incitement to religious hatred an offence?

  (John Wadham) Yes, we are. Our concern is that these measures, apart from being a sop that the Government wants to throw at the Muslim community, will be divisive, impractical and breach fundamental issues relating to freedom of expression. It seems to me that there is a difference between incitement to hatred in relation to race and incitement in relation to religious hatred.

91.  Was it not your organisation which was very keen at a time in the 1960s for a law to be passed against incitement to racial hatred?

  (John Wadham) We have all supported that law absolutely.

92.  I thought you did.

  (John Wadham) Our concern relates to two issues: the first is that if you look at those provisions and the provision about greater sentences for people who have racial motives, they have unfortunately often been used against black and ethnic minorities as well as against racists. We are concerned that we may find that these provisions are first used against Muslims. We already know that people have suggested they should be used against Muslims, so I am not sure they are necessarily going to be a protection in relation to that. Secondly, there is a difference between racial hatred and religious hatred. In religious hatred the mischief is actually inciting people to hate the ideas of a religion. That is something we have to allow. It is not acceptable, however, to allow people to incite hatred against race because that is obviously something which is fundamental to the way a person feels about himself and there is a difference between criticism, however robust, of ideas and criticisms which relate to the colour of someone's skin.

93.  Do you think in practice say a religious Muslim sees much of a distinction, if any, between hatred directed against him, if that were the case, because of race, if he could be described as belonging to a separate race, and hatred directed against him and his religion? In actual practice would he see the distinction?

  (John Wadham) If it is the case that the incitement is directed at him because of the colour of his skin or because of his ethnic origin, then in fact that is already a criminal offence and police officers can arrest, charge and the CPS can prosecute. I do not have a problem, if in fact it is the case. The second issue is that there is a subtlety which I think the Government has missed here: currently there is a gap in protecting the Muslim religion from discrimination. The current Race Relations Act, the civil law, makes it unlawful to discriminate against somebody on the basis of their race. For peculiar reasons, it is not unlawful to discriminate on the grounds of someone being of the Muslim religion. That is a gap which should be changed. At the moment it is unacceptable that somebody who is a Muslim can be sacked for being a Muslim and there is nothing they can do about it because it is not directly related to their race. That is the way the courts have decided this. That should be changed and that is what the Government should do instead of creating criminal offences which will mean that people who robustly criticise other people's religions may be in difficulty and may be arrested. Perhaps they will not be convicted, perhaps the Attorney General will take the view that they should not be prosecuted, but they will harassed, they will be arrested and they may be subject to further prosecution if they are not convicted. Of course there have been arguments by comedians that they will be subject to these provisions. That is probably laughable in practice, but nevertheless it raises the issue. If the Government want to do more to protect Muslims they have to change the nature of the discrimination law and they have to make resources, in terms of the police and prosecution authorities, available to ensure that where there are attacks, physical attacks or other crimes, including incitement to racial hatred, the resources are available in those circumstances. Lastly, I am not convinced that the Government has been as successful as it should have been in ensuring that the "Islamaphobia" which has existed since 11 September does not continue to flourish. Politicians and everyone, including Liberty, should have been more active at the beginning and I should like to see more leadership by the Government to ensure that does not continue. That is the real solution. Changing the law is not going to change the nature or way Muslims are in fact being physically attacked on the streets. What we need are more resources to do that.

94.  Do you feel that had the law been as it will be, if Parliament so agrees, a satire like The Life of Brian, which hit out in a satirical way at a very secure and established religion, the main religion in our country, namely Christianity, would have been in difficulties? I assume you know about it.

  (John Wadham) Yes. I hope the reality is that police officers, the Crown Prosecution Service, the Attorney General and the courts would avoid that being a problem. We are therefore reliant on sensible police officers, sensible prosecutors and sensible courts. Although many of those groups of people in this country are sensible, thank goodness, we should have a law which does not allow us to get into those difficulties. It is for Parliament to protect us from laws which are likely to be abused and more likely than not to create further tensions between religions and in some circumstances further difficulties with supporting the Muslim community in this country. That is an issue which needs to be addressed. It is all very easy for Parliament and the Government to change laws. It is much more difficult and hard work to change people's attitudes and culture. It is the latter which is necessary and the former not.
  (Professor Gearty) Very vocal minorities would use the law to put pressure on the police and others to act. There would be a new dimension to the reaction to such movies.

95.  Would it be your view that there would be a danger to free speech, if for example it were argued that, be it any of the religions, Judaism, Christianity, Islam and so on, they may be wrong in their interpretation? Would there be a feeling that could be in danger?

  (Professor Gearty) There would be a kind of chill factor. If you took someone like Salman Rushdie, a whole lot of private prosecutions would have been launched and thousands of letters written about prosecuting him for incitement to religious hatred and there would be a new dimension to the risk involved in taking on religious icons as it were. I do not know whether it would end with people in jail.

96.  Like what religious icons for example?

  (Professor Gearty) Like for example Salman Rushdie's book or The Life of Brian.
  (John Wadham) Some Muslim groups have already suggested that once this law is in force it should be used to prosecute Salman Rushdie and his book The Satanic Verses. That needs to be read alongside the current law where it is already an offence to incite a crime. So in fact if you are inciting people to assault other people, that is a crime in itself and can be prosecuted. It may need resources, it may need a clearer direction from our chief constables, it may need some assistance from politicians to ensure that these crimes are dealt with properly, but to go in this other direction is going to create more problems and does finally create more problems about freedom of expression in relation to religion. It is right that religious ideas are criticised and it is right that religious ideas are criticised robustly. What we want to ensure is that people do not use violence as a means of getting at other people who support a different religion and that is already against the law.

Mr Cameron

97.  I am with you on this one. We do not agree about the freedom to exclude people from our country but we do about freedom of speech. Do you think that we need to level the playing field by abolishing the blasphemy laws at the same time?

  (John Wadham) Absolutely.

  Chairman: I feel an amendment coming on.

Mr Cameron

98.  I was listening to what you said about incitement to religious hatred. Do you not think that the argument that this is different from incitement to racial hatred because race is something essential to someone's being, whereas religion is not, is a weak argument? A Muslim feels that his commitment to Islam is essential to his or her being. Do you not think that should not be the first argument against this law?

  (John Wadham) Some people's religion is much more essential to their being than others. Some people convert to religions at different stages in their lives. So I accept that it is not necessarily different in practice, though of course it could be different and that is the fundamental thing. Finally, the issue is about ideas not about colour of skin and that is different, so in fact what you are criticising about someone else is actually their ideas, whereas in relation to incitement to racial hatred you are criticising their skin colour or their ethnic origin. I think there is a fundamental difference between those two proposals. I accept that they are in the same ballpark, but they are something different.

99.  Is it not Professor Gearty's argument that really the problem with this is that it is law as a gimmick, it is law as a headline. You are going to pass this law, a lot of people are going to think it is going to make a huge change and Salman Rushdie is going to go to jail, but actually very little is going to happen and as a result it brings the law into disrepute. Is that not the core of it?

  (Professor Gearty) Yes and on your earlier remark about blasphemy, I think that a far more powerful intervention from our state would be to repeal the blasphemy law which would be a re-statement of freedom of expression and a reminder that we stand for something which is separate from religion. The other does look, as you describe it, a bit gimmicky.

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