Where the state has to stop

The Protection of Freedoms Bill is currently at committee stage in the House of Commons. This bill forms part of a key statement in the coalition agreement that the Government would “implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion”.

The bill includes major reforms for England & Wales. However, it also includes some significant proposals which extend to Scotland, and it is these which are considered below.

Biometric material

A Commissioner for the Retention and Use of Biometric Material will be appointed by the Secretary of State to review the retention of DNA by national security determination under terrorism legislation or s 18G of the Criminal Procedure (Scotland) Act 1995, and the uses to which such material is being put. If the Commissioner deems that retention is not necessary, destruction of the material may be ordered.

The Secretary of State will issue guidance on such national security determinations.

Regulation of surveillance

The bill amends the Regulation of Investigatory Powers Act 2000. This Act sets out the framework for lawful interception of communications, surveillance and the use of intelligence sourced from undercover agents. There have been concerns that disproportionate use is being made of these powers in name of counter-terrorism. The bill inserts a new a requirement for judicial approval to be obtained by local authorities for the use of these powers, adding an independent assessment of proportionality, as well as improving accountability and transparency.

Protection of property

The bill allows for orders to be made to repeal unnecessary powers of entry, add safeguards in respect of the exercise of such powers, or replace such powers with new powers, subject to additional safeguards. Each cabinet minister will be placed under a duty to review existing powers of entry in order to consider whether this power should be exercised. Furthermore, a code of practice will be put in place in relation to future powers of entry granted by the UK Parliament.

Counter-terrorism

Part 4 amends two controversial aspects of the current counter-terrorism powers. The maximum pre-trial detention period is reduced by half from 28 to 14 days. This change follows unsuccessful attempts by the previous Government to raise the limit to 90, and then to 42 days.

Stop and search powers under the Terrorism Act 2000 are also to be amended, following the finding by the European Court of Human Rights that the current powers infringe article 8 of the Convention (Gillan and Quinton v UK (2010) 50 EHRR 45).

The amendments will restrict searches, on the whole, to where there is a reasonable suspicion of terrorism. Searches will be permitted without a reasonable suspicion that the person/vehicle in question is involved in terrorism within a specified area. However, there must be a reasonable suspicion that an act of terrorism will take place in that area, and the search must be deemed necessary to prevent such an act occurring. The bill also restricts the extent of such an area, and the duration for which the area can be specified for this purpose. Additionally, the purpose of searches carried out in such an area will be to discover evidence of terrorism, rather than, as at present, searching for articles “which could be used in connection with terrorism”.

The bill further provides for the publication of a statutory code of practice providing guidance on the use of stop and search powers.

Freedom of information

The bill also proposes changes to the Freedom of Information Act 2000 (FOIA) and the role of the Information Commissioner.

The FOIA will be amended to require that public authorities publish datasets in a format which allows for their reuse. This prevents the publication of information in PDF format only, which cannot be reused for analysis by the recipient. The bill further amends the FOIA to broaden the definition of a publicly owned company, to include companies wholly owned by one or more bodies from the wider public sector. It will also bring bodies including the Financial Ombudsman Service and the UCAS under the FOIA.

The bill strengthens the independence of the Information Commissioner, through changes to the Commissioner’s appointment and tenure. Additionally, the requirement for approval of the Secretary of State in relation to certain functions of the Commissioner will be removed.

Only a first step

These are welcome protections to freedoms; however, the bill does little more than tackle a list of some of the most problematic or high profile erosions of liberties. The bill is a positive first step in the coalition’s “full programme of measures” to protect civil liberties, but does not equate to a full programme, and further measures will be necessary if that aim is to be achieved.

Jennifer Dunlop, Scottish Human Rights Law Group