THE BATTLE AGAINST PRIVACY

commission had signed a minority report By next Monday, organisations and individuals using recommending stronger protection for personal privacy. computerised information about other people should have The 1975 Computers and registered their databanks under the 1984 Data Protection Act. Privacy White Paper was drafted in less than In September 1987, Britons will get a new right to inspect the the usually vague terms. It warned that: contents of many files held about them. That right has taken 20 The time has come when those who use years to establish, in the face of the determined resistance of computers to handle personal information, successive governments and their officials, report DUN CAN however responsible they are, can no longer remain the sole judges of whether their own CAMPBELL and STEVE CONNOR systems adequately safeguard privacy. A Data Protection Committee was to be PRIVACY, in legislative terms, is a Home widespread support. appointed forthwith, with the intention that it Office matter. With a few honourable Neither government nor Home Office cared should lead directly to legislation for an exceptions, no one in the Home Office, be they in the slightest for this proposal; they reached independent Data Protection Authority. In civil servants or ministers - of either party - quickly for one of the regular Whitehall February 1976, Sir was has ever given a damn about personal privacy. standbys - a Royal Commission. Walden was appointed to lead the new committee, but he The process of giving British citizens the cajoled into withdrawing his bill during its died shortly afterwards. right to privacy began by accident, as an second reading, so that the Commission might His place was taken by the then director of attempt to head off an MP's private bill on the deliberate. The Younger Commission on Hatfield Polytechnic, Sir Norman Lindop. legal 'Right to Privacy'. It has only now been Privacy was appointed in May 1970, but The Lindop committee started work in July enshrined in law because British international central government activities were excluded 1976. Its report described how an trading interests in information technology from its terms of reference. independent, statutory Data Protection might otherwise have been damaged. Authority should be set up; and recommended During the two decades of inaction, the a range of codes of practice, legally Home Office first excluded all government enforceable, to govern the handling of activities from being considered as threats to personal data in different areas of concern. privacy. Forced to broaden the issue, they ruled that Home Office interests, which in fact BY 1979, over eight years had passed since the pose the major threat to privacy - police, Walden bill, with legislative action immigration and national-security activities=- successfully avoided. But Lindop offered the should be wholly exempt from scrutiny. Home Office clear recommendations for early Finally driven to the point of near legislation, legislation, to which the government had they nominated a Home Office official as a earlier said it was committed. The Home suitable protector of privacy against the abuse Office, however, announced a new of personal information. consultative exercise sothat 'interested bodies' Dragged by Parliament and public opinion might offer their comments on the report. In far enough to give the Data Protection effect, all the people whom Lindop had just Registrar some measure of independence, they Younger reported in July 1972, consulted were to be consulted again. robustly fought to ensure that the Registrar recommending legislation on technical In January 1979, Home Office junior had few duties, no powers to speak of and a surveillance ('bugging') devices and the rapid minister Lord Boston stated that 13 staff as small as conceivable. To acknowledge creation of a 'standing commission' to keep government departments would soon be that a little useful protection for privacy may under review the gathering and handling of consulting over 200 such bodies, seeking their yet have come from this process is not to personal information on computer. views. belittle the determined and forthright The Home Office offered no action, but explained that this process might take some avoidance of the issue successively displayed announced a new consultative exercise in time as he did 'not think it appropriate to by Home Secretaries , order to 'take public reaction and the views of impose a rigid time limit upon consultation'. , Merlyn Rees, William those interested in this matter into account In the event, the new. consultations Whitelaw and . before announcing our conclusions'. A W~te eventually took nearly two years to complete. In February 1967 Alex Lyon MP Paper would be proferred 'in due course'. A The Home Office studied the responses; co- introduced a Right of Privacy Bill. It failed to general election conveniently intervened ordinated them; and considered their view. By get a second reading. But at the same time, the before any further action was needed. National Council for Civil Liberties (NCCL) The incoming Labour administration in launched a privacy campaign; and Justice, the 1974 promised an early White Paper on the British section of the International issue - no later than the summer. By January Commission of Jurists, started to draft 1975, the White Paper remained unpublished. potential legislation. Home Office ministers had found 'a need to A more serious threat, from the government re-examine certain parts [of it]'. It was point of view, arose in January 1970 in the eventually published in December 1975, 18 form of a Right to Privacy Bill introduced by months late. Brian Walden MP. Walden's bill was adapted A supplement listed central government from the draft by Justice, who had just computers then in use. That it ever emerged at published a report on privacy and the law. The all owed a great deal to Alex Lyon, then a Walden bill recommended a general, newly appointed Home Office junior enforceable right to privacy. It attracted minister, who as a member of the Younger

14 the time the responses had been fully since the Walden bill, 15 years since the issue description had to be registered; failure to examined, and a suitable view formed, another had been first raised; the European register was to be a criminal offence. general election had conveniently intervened. Convention was a year old - and all The Registrar was nevertheless given few government action had been successfully formal powers and duties. The bill had failed avoided. Labour MP Michael Meacher to make the statute book when the 1983 proposed a private member's Data Protection general election was called. Bill. Like its predecessors, it did not reach a A new bill, presented quickly by the second reading. But an accident of fate now returning government in June 1983, was forced political commitment and a timescale described as 'simplified'. Computer for action onto a reluctant Home Office. information held solely for payroll and The Sun newspaper embarked on an accounting purposes was excluded. exercise in breaching Meacher's personal In a move to further weaken the bill- which privacy by hiring private detectives to see how the Home Office were pleased to describe as much information they could gather on his 'easing the Registrar's workload [and personal life. Hedging their bets, they knew enabling] him to devote more of his resources the exercise would either yield embarrassing to the general oversight of data protection' - data on his personal life (agood Sun story) - or the Registrar lost powers to enter premises to The new government had no policy, a clean illustrate how even innocuous information check on the conduct of databank operators. slate, and plenty oftime to start re-thinking the could be gathered to the detriment of the The new bill required the Registrar to apply to .issue from the beginning. citizen (a good shock-horror story). a circuit judge for this purpose. The new incumbents at the Home Office When the Sun's probe into Meacher's The bill faced renewed, fierce and well- were, from the department point of view, personal life was raised in Parliament, the deserved criticism, particularly from such commendably uninterested in information Prime Minister responded with unusual powerful professional lobbies such as the privacy. They wanted legislation on it like they sympathy and characteristic impetuousness. 'I British Medical Association. The BMA wanted a hole in the head. But in 1980 the share your distaste,' Mrs Thatcher told the described it as 'a load of holes joined together'. House of Commons Home AffairsCommittee questioners, adding that legislation was The major 'features criticised were the total examined the history of privacy legislation. 'urgent'. It was, she pronounced, the exclusion of manual records, the vaguely The committee had a particularly arduous government's intention to legislate on data drafted definitions and terms of reference, and time trying to get intelligible information from protection in the next session of Parliament. the numerous and very widespread Home Office witnesses. Home Office Deputy This' was the first that stunned and dismayed exemptions. Secretary Ralph Shuffrey was repeatedly Home Office officials had heard of it. It was rather doubtful, according to both the asked when legislation would come; National Council for Civil Liberties and repeatedly he answered that it was 'under NOW THE PROMISED White Paper had Conservative Lawyers, that the bill even consideration'. When it was pointed out that a actually to be written. It emerged hastily two achieved its objective of enabling Britain to special Council of Europe Convention on data months later. After years of effort, and a ratify the European Convention. protection would soon be in effect Shuffrey thousand pages of previous reports and White The weak position of the Registrar was suggested that this provided good reason for Papers, the Home Office proposals covered attacked, and there was renewed pressure for further delay: scarcely six pages. an independent authority, as Lindop had It is not necessarilya goodideato havea policy The new law, the Home Office then said, recommended. But if there was one thing the cut anddriedbeforethe conventionis readyfor would be the 'minimum additional burden Home Office would not do, it was to accept any signature... part of any of Lindop's suggestions. Despite British delaying tactics in Strasbourg As Professor Fred Martin, one ofthe Lindop (Mr Shuffrey called it '[action] to ensure that committee members, suggested, part of the the draft Convention is phrased in the most reason for the eventual disregard of the sensible terms'), the Council of Europe's committee's work was the Thatcher Committee of Ministers approved the government's whimsical attitude to public- Convention in October 1980. Styled the interest organisations: Convention for the Protection of Individuals The incominggovernmentwas committedto with regard toAutomatic Processing of Data, the the destruction of what it was pleasedto eaU new agreement was opened for signature at the 'quangos'. How useful to manufacturea name start of 1981. likethis,aslightlycomic,slightlyominousname The Convention requires each signatory to whichenablesyoucheerfullyto demolishsome have protection legislation, and not to transfer useless,someharmless,but somequitevaluable personal data to or from countries lacking such and constructive bodies. How could they contemplate setting up a Data Protection legislation. It prescribes a basic right to that is consistent with proper protection'. Authority which could be immediately individual privacy, in terms broadly similar to Their proposal to put a Home Office officialin identifiedasanotherquango? the British Data Protection principles. charge of data protection had quickly been The Data Protection Act, Martin predicted The Home Office was cornered. Consumer laughed out of court. There would be an groups, civil rights bodies, medical and other independent Registrar. . accurately, would 'ensure that there is no embarrassment to government activities'. He professions, computer operators and users, But the Registry would be small: a staff of trade unionists, the information technology added his own epitaph to the work of the Data 20, and 'less once the Register is established'. Protection Committee: industry and other government departments Consequently, the Registrar's ability to police now shared an interest in early legislation. personal information privacy would be made The factthat the report has been soeffectively The Home Office promised an early impossible as he would 'not have the resources neutralisedis a striking testimonynot only to statement. None came until March 1981, to supervise the operation of data systems in politicalindifference,but totheeasewithwhich when Home Secretary William Whitelaw detail'. Manual files and records were to be some powerfulinterestscan take advantageof conceded that legislation 'in principle' would excluded from the register. There would be no that indifference to ensure that their own domainremainsinviolate. have to come 'when an opportunity offers'. It binding codes of practice. would be the minimum necessary to comply The bill was published in December 1982. with the Convention. But, first, there would The purpose of the bill was to do the The above is an edited extract from On the Recordby be a White Paper, so that the government's 'minimum necessary' to enable Britain to Duncan Campbell and SIeve COI/I/O/; 10 be published bv views could be discussed and appropriate Michael Joseph OIl 19 May, £7.95 (paperback), £12.95 ratify the European data protection (hardback). groups consulted yet again. convention. Manual records were excluded, By the start of 1982, 12 years had passed but computerised; records of almost every