The Protection of Freedoms Bill was introduced in the House of Commons on 11 February 2011. Consideration of the Bill in Committee concluded on 1 May; it is currently awaiting its Report stage. The purpose of the Bill is to repeal or reform measures which the Government considers unduly restrictive of individual liberty or which interfere disproportionately with individual rights. Overall, we welcome the Bill for its enhancement of legal protection of human rights and civil liberties. However, we raise a number of concerns about specific measures which may not go far enough to ensure compliance with the UK's human rights obligations or may risk new infringements of individual rights. We make a number of recommendations in the Report which are designed to ensure that the Bill goes further to enhance its intention better to protect individual rights and freedoms in the UK.
Retention of fingerprints and biometric materials
Part One of the Bill contains provisions to reform the law on the retention of fingerprints and DNA samples and profiles in England and Wales, in response to the judgement of the European Court of Human Rights (ECtHR) in Marper v UK that existing provisions in the UK pose a disproportionate interference with the right to private life, in violation of Article 8 of the European Convention on Human Rights (ECHR). We welcome these provisions as they are a significant improvement on the measures contained in the Crime and Security Act 2010, and create a less intrusive mechanism for the retention of biometric material. The measures in the Bill will make it more likely that the operation of the National DNA database will be compatible with the right to private life. However, we have a number of outstanding concerns about the Government's proposals. Our key conclusions include:
- Without fuller information and statistics on the operation of the National DNA Database we cannot reach a firm conclusion on the proportionality of these measures. We recommend that the Government should be required to gather information about the operation of the proposals in the Bill which should be published in a regular report to Parliament.
- However, we are concerned that the Bill contains a mechanism whereby profiles from those arrested but not charged may be retained in "prescribed circumstances" where the Biometrics Commissioner consents. This may create a significant risk of incompatibility with the right to respect for private life.
- We are concerned that the Bill would create a broad "catch all" discretion for the police to authorise the retention of material indefinitely for reasons of national security. We are concerned that the Minister has not provided a justification of why this power is necessary and proportionate, particularly in light of specific measures targeted towards retention in relation to counter-terrorism and immigration. Without further justification or additional safeguards, these measures should be removed from the Bill.
Processing of children's biometric information
The Bill provides new safeguards in relation to the processing of children's biometric information, in response to the growing use of biometric identification systems in schools, including to record attendance and to access services such as the library or cashless canteens. Such use of a child's biometric data is likely to constitute an interference with the child's right to respect for privacy under both Article 8 ECHR and Article 16 of the UN Convention on the Rights of the Child. We therefore welcome the significant additional protection to the rights of the child to respect for their personal information provided by these provisions. However, we raise two human rights concerns with the provisions as drafted:
- The provision that parental consent is required is unnecessarily weakened by the exception if "it is otherwise not reasonably practicable to obtain the consent of the parent." We do not see the necessity for this catch-all exception and recommend it is deleted from the Bill.
- The Bill also provides that children of sufficient maturity and understanding cannot give their consent to the processing of their biometric information if their parents do not also consent to such use. We consider that this interference with the right of older children to respect for their private life is not justified as being necessary or proportionate and recommend that the Bill be amended to enable children of sufficient maturity and understanding, or, alternatively, sixth form students, to decide for themselves whether their biometric information should be processed.
The Bill proposes a surveillance code covering the operation of CCTV by public authorities in England and Wales and a Commissioner to promote compliance with the code. While we welcome the introduction of a new regulatory regime in relation to the operation of CCTV, it is difficult to assess whether the code will strike an appropriate balance between an individual's right to a private life and the wider interest of prevention and detention of crime without seeing a final draft of its proposed content. We therefore welcome the decision to subject the code to affirmative procedure for Parliamentary approval. We do, however, note that, by limiting the application of the code to the public sector, its impact may be restricted.
We recommend that the code should include information on the use of CCTV in schools, residential care homes and healthcare settings. We also recommend that the Information Commissioner is closely consulted in the finalisation of the code.
Powers of entry
The Bill recognises that powers of entry to individual's homes should be strictly limited, which we welcome. We note that the Home Office has published a list of around 1200 statutory powers with associated powers of entry, and we welcome the review of existing powers which should identify where powers of entry continue to be justified, proportionate and necessary. We are, however, very concerned that since the review has not been completed, the delegation of powers proposed in the Bill is overly broad and creates a risk that delegated legislation may be used to extend existing powers of entry and to create a new risk to the right to respect for private life. The Bill should therefore be amended to limit this power to amendments which introduce new safeguards against inappropriate use of powers of entry or repeal existing powers. We also recommend that all-premises and multiple entry warrants create new and unique risks for the right to respect for privacy and so all powers to grant warrants of this type should be repealed.
Pre-charge detention of terrorist subjects
The Bill makes permanent the reduction in the maximum period of pre-charge detention of terrorist subjects to 14 days and removes the power of the Secretary of State to increase it again to 28 days. However, the Government has published draft Bills which would increase the period of maximum detention to 28 days if introduced in a time of emergency. Although we welcome the provision to make permanent the reduction in the maximum period of pre-charge detention, we doubt whether it has been demonstrated by evidence that it is necessary now to make provision for a contingency power to extend the period of pre-charge detention beyond 14 days in the event of a future emergency.
Safeguarding vulnerable groups and vetting and barring
The Bill alters the operation of the Vetting and Barring Scheme, which aims to safeguard children and vulnerable adults, reducing the scope of regulated activity, abolishing the concepts of controlled activity and altering the test for barring decisions. We welcome the aim of making the Scheme more targeted and proportionate through a risk-based approach. However, we believe that Article 6 ECHR requires that an individual on the barred list should have the opportunity for a full merits hearing before an independent and impartial tribunal. We therefore recommend that the restrictions on the jurisdiction of the Upper Tribunal in the Safeguarding Vulnerable Groups Act 2006 be repealed to provide for such an appeal.
We welcome the changes the Bill makes to the system of criminal records disclosure which are designed to achieve a more proportionate approach to the disclosure of sensitive personal information.
We also welcome the proposed changes to the duties and terms of appointment of the Information Commissioner, which should enhance the independence of that role.
We also support the amendment of the Public Order Act 1986 to remove all reference to offences based on insulting words or behaviour. This would enhance human rights and remove a possible incompatibility with the right to freedom of expression.