Policy paper

Commissioner response to the TfL consultation on ULEZ expansion

Published 29 July 2022

Biometrics and Surveillance Camera Commissioner Professor Fraser Sampson responds to the Transport for London consultation seeking views on expanding the Ultra-Low Emission Zone (ULEZ) London wide. His statement below is in response to the specific question ‘How concerned are you about use of your data and the installation of more Automatic Number-Plate Recognition (ANPR) cameras to collect information on vehicle movements to enforce an expanded London-wide ULEZ?’

The government’s policy of reducing low emissions and encouraging road users to switch to cleaner vehicles is supported. However, members of the ANPR Independent Advisory Group (IAG) which I chair have expressed concerns that an extension of ANPR functions is not justified and there is limited evidence that it would benefit society. Therefore, its legality is questionable.

Extending the use of the role of ANPR is beyond its initial purpose and causes further concern over its legitimacy. There are ongoing issues around the lack of statutory footing for ANPR. There are also concerns around proportionality and who gets access to the data.

If Local Authorities are intending to use ANPR to support clean air zones, they must have regard to the Surveillance Camera Code as a matter of law. The revised Surveillance Camera Code provides – at 1.3 – “A surveillance camera system should only be used in a public place for the specific purpose or purposes it was established to address. It should not be used for other purposes that would not have justified its establishment in the first place.” It’s not only the technology that has changed since ANPR came into effect; people’s attitudes and awareness have changed towards surveillance too. When looking at increasing the functionality of ANPR in the future we must ask whether this new purpose would have justified its establishment at the outset.

The Surveillance Camera Code goes on to provide that “Any proposed extension to the purposes for which a system was established and images and information are collected should be subject to consultation before any decision is taken. When using surveillance systems, you can only use the data for a new purpose if either this is compatible with your original purpose, you get consent from individuals, or you have a clear obligation or function set out in law”.

It is recommended that Local Authorities complete a Self-Assessment Tool to assess compliance with the Surveillance Camera Code and to help identify any non-compliance issues. This should be reviewed at least annually.

The ANPR IAG members continue to engage with our office on these matters and further discussions will be had with members where that is deemed appropriate.

There have also been some very specific policing issues arising from the exigencies of the coronavirus (COVID-19) pandemic. Aside from the relationships between communities and their police where there has been a blurring of law enforcement and health enforcement, the use of ANPR to identify potential breaches of lockdown arrangements has attracted criticism in some areas – how has that been received more broadly by our communities? We should probably find out.

The exigencies of the COVID-19 pandemic required temporary, emergency measures and it is critical to ensure that they were exactly that – temporary and used only to the extent necessary to counter the threat at the time.  I’ve reported to Parliament on this in the very specific context of National Security Determinations, but I think there’s a much wider need to assure ourselves that we’re not living as if in a constant state of emergency.

The risk of permanent and irreversible incursion by the state during times of emergency is well documented and one of our many challenges now will be to ensure that the balance between responsible intrusion, accountable regulation and societal expectation is resumed. I think this will be particularly important in retaining public support for the use of ANPR.

Aside from the emergency provisions, integrated surveillance solutions themselves bring their own challenges. Will people still be as accepting of ANPR once it can recognise the occupants of a moving vehicle, identifying their children, when and where they got their flu jabs, their passport and if they’ve paid their tax bill?

Integration can bring new ethical considerations too. If your argument for using ANPR technology is based on environmentally responsible behaviour, we need to ensure the same level of ethical approach is adopted throughout the ANPR value chain including the companies we partner up with.

Proportionality is a key legal concept and it’s a relative concept – the greater the anticipated harm the more room for intrusive tactics. How far do the risks of climate change and the COP26 response mean the State can use whatever methods it likes in the name of combatting climate change because nothing is comparable to the enormity of the overall threat?  This needs further democratic debate.

ANPR is a well-established form of community surveillance. The fact that it’s established is important – because people have grown up with it and to an extent have so far, generally, trusted its use – or at least haven’t been as worried about its misuse as some newer surveillance capability. In that respect ANPR is a bit like old school Closed Circuit TV and given its criticality to policing and wider enforcement by a range of government agencies, we extend its overreach at our peril.