Chairman of the Bar Warns that Privacy will be Eroded as Surveillance State Expands

7 October 2009

Speaking at a fringe meeting at the Conservative Party Conference today, Desmond Browne QC, the Chairman of the Bar, will address the topic of ‘The Database State: Privacy under Threat?’ and will warn that individual privacy risks erosion thanks to an expanding surveillance state.  Mr Browne, a leading media law barrister who has represented clients including Neil Hamilton, the Daily Mirror, Elton John and Victoria Beckham, will be part of a panel which features Shami Chakrabarti, the Director of Liberty, and Chris Grayling MP, the Shadow Home Secretary.

Mr Browne will set out the history of the UK’s adoption of the Human Rights Act 1998, and consider whether we have gone too far in protecting rights under Article Eight of the European Convention on Human Rights, and along the way sacrificed too much of freedom of expression, as detailed in Article Ten. 

Mr Browne will ask how the right to privacy vis-a-vis our neighbours and the media is to be reconciled with the right to privacy threatened by the “Database State”, particularly in the light of continued concerns from the House of Lords’ Select Committee on the Constitution, and from the Chief Surveillance Commissioner, Sir Christopher Rose.  In July 2009 Sir Christopher sounded an alarm call about the use of powers under the Regulation of Investigatory Powers Act (RIPA). There was, he said, “a continuing failure on the part of authorising officers properly to demonstrate that less intrusive methods have been considered and why they have been discounted in favour of the tactics selected”.

Mr Browne will evaluate the risk that Governments will abandon proportionality when deploying surveillance powers; a concern all the more real given that the UK leads the world in its use of CCTV cameras, with over £500m of public money spent on CCTV in the decade up to 2006 at the expense of street lighting and neighbourhood crime initiatives. Given the incidence of disorderly behaviour fuelled by alcohol on our streets, it is easy to be sceptical about the value of CCTV in deterring such behaviour.

Desmond Browne will say:

‘I believe that the incremental development of the law by the Judges has proved to be infinitely preferable to the big bang of legislation. Legislation is a crude and inflexible tool, too frequently failing to achieve the results its midwives intended. I think that the case law, European and domestic, which lays down that neither the right to privacy nor that to freedom of expression has presumptive pre-eminence over the other is the right approach. What Lord Steyn in Re S called “an intense focus” is necessary for the Court to strike the balance between the two, applying the European doctrine of proportionality.

‘A quarter of a century after 1984, the common law principles which govern protection of our privacy from intrusion by the media are just as relevant, indeed almost certainly  more so, in relation to surveillance by the state. Here Parliament has intervened with legislation such as the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, but there is much in the view that such legislation has proved ineffective, and occasionally counter-productive, in the halt of Big Brother’s march. No wonder that back in 2004 the then Information Commissioner, Richard Thomas, warned against our sleep-walking into “a surveillance society”.

‘The Bar Council was not alone in its grave concern that there should have been slipped into the Coroners and Justice Bill, currently progressing through Parliament, amendments to the Data Protection Act allowing personal information about individuals held by any organisation to be shared with government departments or others without any of the protections contained in the 1998 Act. Ministers would have been able to decide whether personal information could be disclosed to third parties, in both the private and public sectors, on the ground that sharing the information was “necessary to secure a relevant policy objective”. These changes were so wide-ranging that it was a relief when the Government acceded to the clamour and removed the clause at Report stage in the Commons. 

‘The Bar Council will continue to argue that if there are to be amendments permitting more liberal sharing of data, it is essential they are fully scrutinised by Parliament and contained in a separate Data Protection (Amendment) Bill. We cannot allow the “sleep-walking” to continue.’

ENDS

Notes to Editors:

1. For more information please contact the Bar Council Press Office on 020 7222 2525
2. The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board. It represents the Bar by:

  • Promoting the specialist advocacy and advisory services of barristers;
  • Ensuring access to justice on terms that are fair both to the public and practitioners;
  • Promoting the high quality training and professional development of all barristers to ensure the highest standards of practice and ethical behaviour;
  • Working for the efficient and cost-effective administration of justice;
  • Encouraging access to, and diversity within, the profession so that it is open to all people of ability whatever their background; and
  • Strengthening and developing the work and the values of the Bar at home and abroad.