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Peaceful Protests

Volume 837: debated on Thursday 25 April 2024

Question for Short Debate

Asked by

To ask His Majesty’s Government what assessment they have made of the Practical toolkit for law enforcement officials to promote and protect human rights in the context of peaceful protests, published on 7 March by the UN Special Rapporteur on the rights to freedom of peaceful assembly and association, and how they intend to ensure that the United Kingdom aligns with United Nations standards on the use of surveillance technology at protests.

My Lords, what a select little bunch of Peers we are. Clearly, we all know our stuff on this.

A few years ago, I introduced what I think was the first ever debate on facial recognition here in Parliament. At that time, I recognised it as part of a wider package of changes that were on the route to dismantling parliamentary democracy here in the UK, because, when you combine facial recognition and other technologies with the draconian laws passed in the police Act, the Public Order Act and by ministerial decree, a full-scale clampdown on any form of effective protest is now possible. We are a very short step away from what happens in Russia on a regular basis as the authorities here attempt to stifle protests.

If you add to that the plans for the Government to spy on pensioners’ bank accounts, to promote their own digital currency and to link an array of biometrics to a digital ID card, we enter a very different world where the state can switch on and off your access to the basics of life. We have already given the Home Secretary the power to banish anyone with a dual passport from this country, with no right of appeal in this country, and laws that allow the police to stop named individuals attending a demonstration are in place. Is the UK state going to set up the technological infrastructure that will allow for the internal banishment of people with views the Government do not like, with the denial of privileges that we currently see as rights?

We are entering this new era of a Big Brother state at speed, and democracy will be the victim of the inevitable crash. The UK police charged with combating extremism now have similar powers to the Russian police combating extremism. I was once called a “domestic extremist” by the Met Police; it watched me for 10 years because I was clearly a threat to democracy—and it lied about it as well. The differences are dependent on which police officer interprets the law; the vigour of groups, such as Big Brother Watch, which seek to defend our rights; and the spirited independence of those lefty lawyers whom the Government complain about so often.

In Russia, more than 2,000 protesters against the war in Ukraine have been arrested or detained using facial recognition technology; they include people visited at home and questioned after a peaceful protest. This has also become standard practice by the Met Police, which trawls through video footage to identify people it wants to arrest. Most importantly, facial recognition is now used in Russia to detain those on their way to a protest after being spotted by the metro camera system. This mirrors the new laws in this country allowing the authorities to ban protesters ahead of demonstrations by issuing control orders or the new serious disruption prevention orders. The Met Police also has access to much of Transport for London’s camera network, yet the only political party to have ever pressured for constraints and safeguards to be put in place is the Green Party.

These deployments of facial recognition have turned our city streets into mass-scale police line-ups, with hundreds of thousands of innocent people subjected to biometric identity checks. Yet, eight years after UK police first rolled out this invasive technology, there has been no democratic consent to live facial recognition and biometric surveillance in Britain. No legislation to approve or ban the use of live facial recognition technology in the UK has been passed or even seriously proposed. Instead, the police operate in a grey area, enabled by a democratic deficit to use rights-invading technology with minimal oversight.

That is why we need to apply the UN standards as a minimum. Those standards make it clear that such technology should not be used to identify people participating in peaceful protest and that protests should not be used as surveillance opportunities. The UN model protocol prohibits the use of facial recognition to identify those participating in peaceful protests. These are standards designed for the likes of Russia, Zimbabwe and Uganda, but we actually cannot meet them here in the UK.

For example, Cheshire Constabulary has stated that it intends to use facial recognition technology to monitor, track and profile individuals. There are no safeguards in place to protect individuals’ rights and the right to protest. This is hardly surprising. How many times, in recent years, have we heard senior politicians and Home Secretaries saying that they believe in the right to protest—“Ah, but not for those particular protesters or protests”?

We need a charter of democratic freedoms that enshrines the right to protest and to assemble. We must never have another situation like the Sarah Everard vigil, when senior officers at New Scotland Yard decided on a clampdown against people who were coming together to remember a woman murdered by a man nicknamed the “rapist” by his colleagues in the Met, while they allowed him to remain in their ranks.

Our authoritarian Government are proposing the abolition of the existing scant oversight of facial recognition and other forms of advanced surveillance through its Data Protection and Digital Information Bill. You cannot use a system designed to protect consumer privacy to protect you from state intrusion. My big concern is that we contest each of these new laws and technologies in isolation, rather than seeing the big picture of what this Government are out to achieve. The ban on strikes, the granting of legal immunity to undercover officers who spy on campaigners, and voter suppression are all part of a rapid slide into an authoritarian country.

I hope that the next Government aim to restore the freedoms that we have lost and replace the safeguards that have been dismantled. I look forward to hearing from the noble Lord the shadow Minister on that. I will be pressurising the next Government to make that happen and for our freedoms to keep pace with the technologies used by the state to restrict them. Will the Government accept these UN standards?

My Lords, I thank the noble Baroness, Lady Jones, for calling this very important debate and I declare my interest, as recorded in the register, as chair of Big Brother Watch. I thank Madeleine Stone of Big Brother Watch for the excellent briefing that she provided parliamentarians about the UN toolkit that we are debating today. I also thank Professor Peter Fussey for his guidance; he was an important contributor to the UN toolkit.

The very worrying subject of this debate is just part of the Government’s assault on the privacy of ordinary, law-abiding citizens. Another example of the Government’s propensity to spy on us all is their smuggling into the Data Protection and Digital Information Bill a last-minute amendment enabling the Government to snoop on all our bank accounts. The pretext for this suspicionless financial snoopers’ charter is benefit fraud, for which authorities already have ample powers. This would affect every one of us, with our bank accounts being repeatedly scanned on secret criteria, set by the Government, and the banks forced to hand over unlimited amounts of information. This financial snoopers’ charter is not linked to serious crime or to any crime at all. This House must stop it in its tracks.

The trigger for this debate was last month’s publication of the UN toolkit, Human Rights Compliant Uses of Digital Technologies by Law Enforcement for the Facilitation of Peaceful Protests. Protests are important in a democracy, because they empower people who disagree with their Government’s actions. Those citizens may feel isolated and powerless, but public demonstrations show them that they are not alone and that there are thousands who agree with them. Those in power may try to ignore dissent but, if there are enough protesters, the Government will feel the need to come up with reasons why the protesters are wrong. That is when the debate begins, which is good. Protests also provide an essential voice for minority groups, who otherwise would not be heard.

I return to the UN toolkit, which challenges the UK police approach to biometric identification technologies such as facial recognition. It states very clearly:

“Facial recognition technologies and other biometric identification technologies must not be utilised to identify or track individuals peacefully participating in a protest”.

It also states that protests should not be used as a surveillance opportunity, which I and the Liberal Democrats also support. The reason given by the UN is simply that the use of this technology at protests represents a significant threat to the rights to freedom of expression and association. The inevitable “chilling effect” will mean that members of the public are less willing to engage in their right to protest, as they fear the loss of anonymity and possible reprisals, either now or in the future.

This is in line with the 2023 judgment of the European Court of Human Rights that Russia’s use of facial recognition technology to identify protesters was unlawful. Since this ruling, Russia has continued to use the technology to target protesters against the war in Ukraine and those attending the funeral of the political dissident Alexei Navalny.

However, despite the UN and ECHR rulings, police forces in the UK are already using facial recognition technology to monitor and identify peaceful protesters, in a total legislative vacuum. No primary legislation or regulations cover the use or oversight of this technology, so the police are writing their own rules, with no consideration of the human rights of their targets. This is a totally unacceptable state of affairs.

Facial recognition technology is wholly intrusive. It is the equivalent of stamping a barcode on every citizen’s forehead so that they can all be identified from a distance. Less intrusive identification methods, such as using fingerprints or DNA, are heavily prescribed in their use and the retention of their data. But, scandalously, there is nothing to control the use of facial recognition technology, which poses the most serious threat to human rights of all these technologies.

Facial recognition technology was used by police in Cardiff to monitor an entirely peaceful protest. The watch-list fed into the system contained mostly individuals not wanted for any criminal activity. It was just monitoring law-abiding citizens exercising their right to peaceful protest. The Appeal Court found that South Wales Police had unlawfully deployed the technology, but that has not stopped it being used at peaceful protests.

Current police policy, which, in the absence of any legislation, they have written for themselves, covers identifying people who “may cause harm”—whatever that absurdly broad phrase means. It can be used to include just about anybody. This do-it-yourself police guidance sets no criminal threshold for the use of live facial recognition and can be used to justify any kind of use, including surveillance and identification of peaceful protesters.

Amazingly, this is only the second time that facial recognition has been debated in Parliament in the eight years since the police started trialling it. As a result, there is no democratic mandate for the use of this technology. The Science and Technology Committee called for an “immediate moratorium” on its use, which has been ignored. There has been sustained criticism of the legislative vacuum from parliamentarians, academics and rights groups. The independent review commissioned by the Met criticised the force for failing to consider the impact on human rights and relying on an inadequate legal basis. Four Biometrics and Surveillance Camera Commissioners have found that the existing legal position is not fit for purpose.

I have a number of questions for the Minister. If he feels unable to answer them all today, will he write to me and the other speakers in this debate with his answers? How do the Government justify taking the opposite approach to that of our allies and the UN guidance, instead mimicking the Russian police state practice of using facial recognition to identify protestors at peaceful protests? Will the Government commit to complying with the UN toolkit, which prohibits using facial recognition to identify those participating in peaceful protests? How have the Government evaluated the chilling effect on peaceful protests of using facial recognition, including at the Coronation?

Furthermore, what recourse is available to citizens who are wrongly placed on the facial recognition watch-list or are misidentified by the technology? Big Brother Watch has examples of innocent people, including a 14 year-old boy being mistakenly identified as a criminal, with seriously traumatic effects, possibly lifelong. The UN model places a clear responsibility on states to ensure proper oversight of advanced surveillance technologies at protests. With the likely abolition of the Biometrics and Surveillance Camera Commissioner by the Data Protection and Digital Information Bill, who will conduct this oversight?

Lastly, when will the Government wake up from being fast asleep at the wheel on this vital matter and legislate? We need a robust and clear domestic legal framework, governing the use of digital technologies by law enforcement that conforms to international human rights law.

My Lords, I remind noble Lords that I am now a non-affiliated Member of this House and that I served for 30 years as a police officer specialising in public order policing. I also declare an interest as a paid non-executive adviser to the Metropolitan Police Service, and I am grateful to the Met for providing me with a briefing, and to Big Brother Watch, as I have managed to acquire its briefing.

I am very grateful to the noble Baroness, Lady Jones of Moulsecoomb, for the opportunity to debate the practical toolkit for law enforcement officials to promote and protect human rights in the context of peaceful protests, although I fear that this debate may be a little premature, as components one and three of the toolkit are yet to be published. However, we have component two, “A principle-based guidance for the human-rights compliant use of digital technologies in the context of peaceful protests”.

Looking at this document from a practical UK policing perspective, I found it somewhat confusing—and I am looking at this from a physical assembly or demonstration perspective, rather than an online one, which is included in the UN document. As Big Brother Watch points out, and as the noble Lord, Lord Strasburger, just said, the guidance states that biometric surveillance should not be used

“before, during or after protests”


“facial recognition technologies … must not be utilised to identify or track individuals peacefully participating in a protest”.

Big Brother Watch goes on to say that:

“The use of this technology at protests represents a significant threat to the rights of freedom of expression and association, as the chilling effect will mean members of the public are less willing to engage their right to protest, as they fear loss of anonymity and reprisals both now and in the future”.

If, and only if, facial recognition is deployed to capture the images of peaceful protestors and identify them, would the fear of loss of anonymity be a reasonable one—and if, and only if, those protestors were to engage in unlawful activity, would there be a reasonable fear of reprisals, at least here in the United Kingdom? The fact is that live facial recognition as deployed by police forces in the United Kingdom does not capture and retain images but simply compares those images with a limited and specific database of individuals, which changes depending on the deployment.

For example, my understanding is that the images of those convicted of stalking-type offences in relation to members of the Royal Family may be used at events such as the Coronation, but away from sites of lawful protest. Biometric facial images are captured and compared with the event-specific database images, and if there is no match, the image is immediately and irreversibly deleted. At events such as the Coronation, where assembly was lawful, and mindful of the potential chilling effect, the Metropolitan Police confirmed in a public statement that facial recognition

“is not used to identify people who are linked to, or have been convicted of, being involved in protest activity”.

It was used to protect peaceful gatherings, not where people had peacefully gathered, by identifying individuals who present a danger in crowds, such as registered sex offenders.

If live facial recognition was used against some universal database, as are, I believe, commercially available to law enforcement organisations outside the UK—a global compilation of millions of images taken from open sources, such as Facebook and Instagram, whereby the police could identify most people at a peaceful protest—the concerns of Big Brother Watch and the UN special rapporteur would have some justification. My understanding is that this is prohibited in the United Kingdom.

Big Brother Watch says:

“Despite international warnings that the use of facial recognition in the context of protest poses a grave threat to human rights, police forces in the UK are already using the technology to monitor and identify protestors”.

However, my understanding is that police forces are not using live facial recognition technology to monitor and identify peaceful protesters but to monitor and identify those who may present a threat to peaceful protest. The example that Big Brother Watch gave of its use at Silverstone, for example, was in connection with an unlawful protest, where the lives of both the protestors and those trying to prevent them could have been put at risk; it was not deployed at a peaceful assembly.

I agree with Big Brother Watch in its assertion that there is insufficient primary legislation specifically overseeing the use of facial recognition, meaning that the police can, to some extent, write their own rules about how it is deployed. However, they are bound by data protection law and the Human Rights Act, which restrict their activities to what is necessary and proportionate to achieve their lawful objectives. In the case of peaceful protest, that is to ensure that the protest remains peaceful. Being able to identify, isolate and restrict the activities of known troublemakers is surely preferable to placing unnecessary and disproportionate restrictions on the activities of the peaceful majority. Properly deployed, controlled and audited, the use of live facial recognition can enable, rather than have a chilling effect on, the right to free assembly and protest. I for one would be more likely to engage in a protest if I believed that the police were taking necessary and proportionate action to identify, isolate and prevent the attendance of those known to be intent on criminal activity.

Big Brother Watch quite rightly questions who is on the databases that the police use, and against which live facial recognition compares captured images. There is a legitimate need for the police to be audited in some way to ensure that their actions are lawful, necessary and proportionate. Arguably, primary or secondary legislation is needed to ensure that the police are deploying live facial recognition in a human-rights compliant way.

However, in my opinion—based on 30 years as a police officer, 10 years as a Liberal Democrat Peer, with eight years as their Front Bench spokesperson on home affairs, and now being back in the paid employ of the Met—live facial recognition in the vicinity of protests, assemblies and elsewhere has the potential to make policing even more proportionate, better targeted and less interventionist. As with so much technology, it is not, as it seems to be portrayed by some, bad in itself—but it has the potential, without proper regulation, to be used in a non-human-rights compliant way. While that is contrary to what the noble Baroness, Lady Jones of Moulsecoomb, suggested, perhaps the way in which the Commissioner of Police of the Metropolis has recently resisted calls from politicians to ban peaceful protests might give her some hope for the future.

My Lords, first I thank the noble Baroness, Lady Jones, for introducing this debate. Although there are very few speakers, it is actually a very important subject. I declare my interest as a sitting magistrate. I have heard cases regarding protests and sentenced protesters on occasion.

I am speaking for the Labour Party in this debate and we, of course, support the right to peaceful protest, which has helped us in this country win so many of our historic rights. In a democracy, freedom of speech, freedom of assembly and historic rights to protest run alongside the rights of people to go about their daily lives, the right to be free from harassment or intimidation and the vital need to ensure that essential services are not disrupted. That is why this House voted against the sweeping stop-and-search powers in the Public Order Bill that risked penalising peaceful protesters and passers-by. As one of the Labour Front-Benchers on that Bill, it was disappointing that the Government failed to pay due attention to the opinion of this House when they brought those measures back in secondary legislation only months later. Will the Minister say what assessment has been made of the impact of these measures?

This debate’s title is highly focused, and it would be useful for the Minister to respond in a focused way to the UN guidance being discussed, and how it relates to the UK’s current strategy towards protests. The debate’s title reminds us that peaceful protesters worldwide face intimidation, repression and human rights violations. Britain must show that the right to peacefully protest should be fiercely protected, while the minority who seek to abuse that right are stopped from doing so.

When the noble Baroness, Lady Jones, introduced her speech, she drew comparisons with Russia and Belarus. I have worked extensively in Russia and have visited Belarus many times, and I think her comparisons with those countries are completely absurd and alarmist. The noble Lord, Lord Strasburger, also made various alarmist claims, but the substance of the points he was making about the use of facial ID technology, and in particular live facial recognition technology, are indeed concerning. I was very interested to hear the fuller explanation of how the Metropolitan Police and other police forces are using this technology. Obviously, the noble Lord, Lord Paddick, gave reassurances about who is on the police database and who can have access to that database when comparisons are made between the faces on the technology and the live facial recognition. He gave the example of stalkers and a couple of other examples. I understand that the noble Lord is talking about the practice of the Met—nevertheless, this is an alarming development, and I think the Government need to be very aware of the way this is developing.

While I accused the noble Baroness, Lady Jones, of being alarmist when comparing Britain to Russia, nevertheless it is the same technology that is being used. This is international technology. We are here talking about what the British Government do but, of course, that facial recognition technology is used completely internationally. There are huge databases of our faces and our characteristics being built up all over the world. We have debated the implications of that on other pieces of legislation fairly recently, and I know the Minister is aware of how that will impact on the way police forces and other agencies try to keep us safe in our own country.

To repeat myself, while I called what the noble Baroness, Lady Jones, said ridiculous and alarmist—I used those words very deliberately—we should be very concerned about the subject and keen to understand developments in live facial ID recognition. I hope that the Minister will be able to tell us that the Government are keeping the most serious eye on the way this technology is developing.

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for securing this debate, and indeed thank all the other Peers who have spoken. I particularly thank the noble Lords, Lord Ponsonby and Lord Paddick, for reminding us of the positive benefits that can accrue to law enforcement, and to keeping the public safe, from the appropriate and proportionate use of this type of technology.

I will do my very best to address all the points raised but, before I do that, I also thank Professor Peter Fussey, who reached out to me directly, which I appreciate, for making some very interesting contributions to the wider discussions on these complicated issues and specifically for his work in co-authoring the recent UN publication. As I say, I will do my utmost to address the points raised and if I fail in any of those, I will scour Hansard and, of course, write.

First, I would like to reassure noble Lords that the Government absolutely recognise the gravity of these issues. They are fundamental to the functioning of our democratic process. For any democracy to be considered a truly free and liberal society, the right to protest peacefully is of course essential and there is a long-standing tradition in this country of people gathering to express their views on all manner of topics. None of us here would wish that right to be unduly diluted or curtailed.

I say to the noble Baroness, Lady Jones, that there is no intention to stifle protests. I am afraid that I agree with the noble Lord, Lord Ponsonby, that comparisons to Russia are absurd, alarmist and specious. That is not to say that protestors have carte blanche to behave in an unacceptable or illegal way. Their rights must be balanced against the rights of others to go about their lives free from obstruction and harassment. Should a protest contravene the law, the police have comprehensive powers to deal with activities that spread hate or deliberately raise tensions through violence or public disorder. Again, that does not negate the right to peaceful protest. The use of these powers and the management of demonstrations is generally an operational matter for the police.

Turning to the specific focus of the debate, the Government again take this opportunity to thank the UN special rapporteur on the rights to freedom of peaceful assembly and of association for his recent report which detailed, as has been noted by all the speakers, a model protocol for law enforcement officials to promote and protect human rights in the context of peaceful protests. The report constitutes the first component of a three-part toolkit that he is publishing. As the Committee would expect, the Government are currently reviewing the model protocol report and will also be assessing the second and third components of the toolkit once they have been published. I can say that, at a high level, the protocol appears to set out some helpful principles; it also recognises that digital tools can enable protest, a point that was powerfully made by the noble Lord, Lord Paddick.

The role of the police in protest is to preserve the peace, to uphold the law and to prevent the commission of offences. As noble Lords are aware, police forces in this country have operational independence and decisions on how to achieve these objectives are a matter for chief officers. The Government are committed to supporting police forces to make use of surveillance technologies to detect and deter crime, and to keep the public safe. I am very grateful to the noble Lord, Lord Paddick, for his examples and, obviously, for his extensive expertise, particularly as regards keeping peaceful protests just that—peaceful.

There is of course a comprehensive legal framework governing the use of surveillance technologies. This includes the Human Rights Act 1998, the Equality Act 2010, the Data Protection Act 2018 and the Police and Criminal Evidence Act 1984, as well as national guidance and published police policies. Surveillance technologies such as CCTV, drones, facial recognition and body-worn video can be used for policing purposes only where necessary, proportionate and fair; I think that answers one of the points from the noble Lord, Lord Strasburger. They cannot be used to restrict the rights of peaceful assembly and association. However, the police do have the right to monitor a protest if serious disorder is expected, in order to keep the public safe.

The Government recognise the importance of ensuring that these technologies are used appropriately and that safeguards are in place to ensure that. As has been stated, their use is governed by data protection, equalities and human rights laws, as well as guidance. As I have just mentioned, they can be used for a policing purpose only where necessary, proportionate and fair.

Your Lordships will be aware that there are a number of oversight bodies active in this space, which hold the police to account for their use of surveillance technologies. The Information Commissioner’s Office regulates all use of personal data, and this includes police use. The police must also comply with data protection legislation, which is regulated by the Information Commissioner’s Office, and with human rights and equalities legislation. The Equality and Human Rights Commission is responsible for upholding equality and human rights laws. The courts also play a vital role. His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services monitors and reports on the efficiency and effectiveness of police forces, and the Independent Office for Police Conduct holds the police accountable for their actions, to improve police practices.

The noble Baroness, Lady Jones, suggested that we are abolishing the Biometrics Commissioner and the Surveillance Camera Commissioner, and indeed their powers, but that is not the case. We are transferring them to the Investigatory Powers Commissioner’s Office, which has expertise and experience in carrying out similar functions. The Information Commissioner’s Office already regulates these areas for all organisations, not just the police. As I said, the Biometrics Commissioner’s casework functions are being transferred. That is because we think that simpler oversight is better.

I spent some of my morning reading the Independent Report on Changes to the Functions of the Biometrics and Surveillance Camera Commissioner Arising from the Data Protection and Digital Information (No. 2) Bill of 6 October 2023, by Professor Pete Fussey. Although I do not necessarily agree with all of his conclusions, he notes that:

“It is widely accepted that current arrangements for oversight for public surveillance and biometric techniques are complex and would benefit from greater clarity”.

We may disagree about how that is done, but it is precisely what we are trying to do.

With regard to the comments by the noble Lord, Lord Strasburger, about citizens recourse, the ICO is open to anyone to complain, and, as it is a regulator, unlike the Biometrics and Surveillance Camera Commissioner, it has the power to take enforcement action. Complaints are relatively straightforward; they can be made via the website, via direct contact, via a police station or, of course, via an MP.

The noble Lord, Lord Strasburger, suggested that in the south Wales case, the use of live facial recognition was deemed unlawful. That is not the case. The court found that South Wales Police did not fully comply with privacy, data protection and equality laws during two of their pilots, but made it clear what needed to be done to ensure compliance with the legal framework. Since then, the police have addressed those court findings. The College of Policing has issued national guidance on live facial recognition, in particular setting out the circumstances in which the police can use it and the categories of people they can look for. The National Physical Laboratory has independently tested the algorithms used by South Wales Police and the Metropolitan Police and found that they were very accurate, and there were no statistically significant differences in performance based on gender or ethnicity—a point that often gets made and needs clarifying.

The noble Lord, Lord Strasburger, implied that none of our allies is using this sort of technology. Of course, it is up to other countries to decide how to regulate the police use of technology, but it is estimated that nearly 70% of police forces globally have access to some form of facial recognition technology, so we are not alone.

In concluding, I thank again the noble Baroness, Lady Jones of Moulsecoomb, for securing this debate, and all those who spoke. It was an interesting and thought-provoking discussion, and I hope that I have provided useful context and background regarding the Government’s position. These are important issues, and I am quite sure we will return to them; this is not the last time we will talk about them. As I have set out, the Government support the police in the proportionate and fair use of surveillance technology to protect the public. We are also committed to maintaining the right to protest lawfully, while also protecting the rights of citizens to go about their lives unimpeded. We absolutely recognise the importance of striking the right balance, and we will continue approaching these questions with the seriousness and care that they deserve.

Sitting suspended.