Government’s new bank spying powers “breach privacy rights”, warn lawyers

• Legal advice by privacy experts warns that the Government’s proposed mass bank spying powers would likely be unlawful

• Campaign group Big Brother Watch said the plans are “a disaster for financial privacy”

• 165,000 people have signed a petition urging the government to scrap the bank spying powers

The Government’s proposed mass bank spying powers are highly likely to breach the public’s right to privacy, according to expert legal advice published today.

The legal advice warns that new Government powers that would see banks forced to scan all customers’ accounts in search of welfare fraud or errors, including the state pension and working tax credits, would reveal information about people’s movements, opinions, and medical information and could breach privacy rights as well as individuals’ rights to freedom of expression, association and assembly, and protection from discrimination. Banks would then be required to send unlimited “matching” account information to the Department for Work and Pensions without account holders’ knowledge.

The Government proposed the controversial financial surveillance powers as a late stage amendment to the Data Protection and Digital Information Bill. They would allow the Secretary of State for Work and Pensions to issue “account information notices” to banks, building societies, online marketplaces and other organisations, requiring them to scan all customers’ accounts in search of secret criteria that could indicate the possibility of welfare fraud or mistakes.

Silkie Carlo, director of the civil liberties campaign group Big Brother Watch which commissioned the legal advice, said “Everyone wants fraudulent uses of public money to be dealt with, and the government already has powers to review the bank statements of suspects. However, this is a completely unprecedented regime of intrusive generalised financial surveillance across the population, not restricted to serious crime or even crime at all.” The barristers who produced the new legal advice, Dan Squires KC and Aidan Wills of Matrix Chambers, stated that in light of broad existing powers to compel banks to provide account information in specific cases, “It is clear that the purpose of the new proposed powers is to carry out monitoring of bank accounts where there are no ‘reasonable grounds’ for believing a particular individual has engaged in benefit fraud or has made any mistake in claiming benefits”.

Big Brother Watch, which commissioned the legal advice, warned that the the automated spying could lead to a “Horizon-style injustice on steroids”. The group recently joined with over 40 other campaign organisations and charities to write to the work and pensions secretary Mel Stride, warning of the risk of wrongful investigations and benefits suspensions if parliament allows the automated surveillance powers to pass into law.

The legal advice also raises questions as to why the financial surveillance powers, unlike comparable investigatory powers, lack “anything like the same” legal safeguards and oversight, describing the discrepancy as “striking” and concluding: “In absence of these safeguards, it is difficult to see how the exercise of this power could ever be in accordance with the law”.

The financial surveillance powers, which are expected to be debated in Committee Stage of the Bill in the House of Lords next week, are expected to face a parliamentary battle. Former Conservative party minister Lord Kamall has joined the government’s former terror legislation reviewer Lord Anderson KC, digital rights campaigner Baroness Kidron, former director of Liberty and Shadow Attorney General Baroness Chakrabarti and Liberal Democrat Technology spokesman Lord Clement-Jones in tabling amendments to remove the powers.

The Information Commissioner John Edwards, who has responsibility for enforcing data protection legislation, recently stated that he has “not yet seen sufficient evidence that the measure is proportionate” and acknowledged that the powers would engage individuals’ privacy rights. Mr Edwards stated that he is “unable, at this point, to provide my assurance to Parliament that this is a proportionate approach.”

Meanwhile, over 165,000 people have signed a petition by Big Brother Watch calling on the Government to scrap the financial surveillance powers entirely.

COMMENTS

Silkie Carlo, director of civil liberties campaign group Big Brother Watch, said:

“These powers are a disaster for financial privacy and the presumption of innocence, and could lead to Horizon-style injustice on steroids.

“It is breathtaking that a Conservative government is so recklessly creating Big Brother-style spying powers to intrude on the population’s bank accounts.

“Everyone wants fraudulent uses of public money to be dealt with, and the government already has powers to review the bank statements of suspects.

“However, this is a completely unprecedented regime of intrusive generalised financial surveillance across the population, not restricted to serious crime or even crime at all.

“The legal advice is clear that the bank spying powers seriously risk Britons’ privacy rights. We urge the government to go back to the drawing board and scrap these Orwellian powers.”

Mikey Erhardt, campaigner at Disability Rights UK said:

“No matter your background, no one should be left without a financial safety net that enables us to live independent lives. At the end of the day, we all want the right support when needed, but this proposal threatens to make the UK’s social security system, already one of Western Europe’s least generous, even worse.

“There is no need for these new powers; the fraud rate for disability benefits is only 0.2%; these powers are a sledgehammer to crack the tiniest nut. These new powers would see Disabled people deprived of the presumption of innocence, adding to the victimisation we already face in a punitive welfare system that often seeks to sanction people into work, whether they are able to or not.

“Rather than wasting money scanning millions of bank accounts, the government should focus on co-producing a new welfare system with Disabled people. We need a new system underpinned by a new ethos of dignity, respect, trust and support. Which focuses on supporting Disabled people to live the lives we want – with no sanctions, conditionality or caps.”

Baroness Kidron said:

“The late addition of powers that allow the DWP access to tens of millions of UK citizens’ bank accounts are cruel, dangerous, and disproportionate.

“Cruel because they put the most vulnerable in society in a situation where family, landlords and employers will withdraw support to protect their own ‘connected accounts’ which will be open for scrutiny.

“Dangerous because we have seen how digital systems, such as Horizon, can easily provide false signals.

“Disproportionate because the DWP has powers to get this information if they suspect wrongdoing. This is a phishing exercise at eyewatering scale, its presence in a Data Protection Bill is contradictory to the bill’s stated purpose.

“My inbox has been inundated with people who hold money for disabled family members, are concerned about the willingness of landlords to continue to house them if landlord bank accounts can be surveilled, and bewildered that even benefits that are not means-tested are included.

“Of course the government has the right to go after fraud of any kind; tax, money laundering, covid loans and benefits, but these measures are focused entirely on benefits of the sick, the elderly and the poor. How is that right?”

NOTES:

• Spokespeople are available for interview. Please contact Big Brother Watch on 07730439257 or [email protected]

• The full legal advice is available here

• Visit StopBankSpying.co.uk for more information about Big Brother Watch’s campaign

• For more information about the proposed powers, see Big Brother Watch’s briefing