Is Mandatory CCTV Realistic?

On 24th September 2018 the Task & Finish Group on Taxi & Private Hire Vehicle Licensing, as commissioned by the Minister of State for Transport, published its ‘Taxi & Private Hire Vehicle Licensing: Steps Towards A Safer & More Robust System’ report.

The report makes 34 recommendations for the improvement of taxi (or hackney carriage) and private hire licensing in England. It, in particular, promotes 2 steps regarding closed-circuit television (CCTV) (at paragraphs 4.8-4.13)–

Recommendation 17

In the interests of passenger safety…all vehicles must be fitted with CCTV (visual and audio) subject to strict data protection measures. Licensing authorities must use their existing powers to mandate this ahead of inclusion in national minimum standards…

Recommendation 18

As Government and local authorities would benefit from reduction in crime in licensed vehicle[s]both should consider ways in which the costs to small businesses of installing CCTV can be mitigated.

Historically, it is not a new idea.  It has long been considered a useful tool for tackling crime and enhancing public safety.  Correspondingly, concerns have arisen about the costs of installation / maintenance, protection of data and privacy of individuals. Such surrounding issues are, noticeably, acknowledged within both recommendations.

Locally, as alluded to in Recommendation 17, licensing authorities do possess an existing remit to attach mandatory CCTV requirements through vehicle licence conditions.  Examples of this power include, outside London, sections 47-48 Local Government (Miscellaneous Provisions) Act 1976 and, inside London, section 6 Metropolitan Public Carriage Act 1869 and section 7 Private Hire Vehicles (London) Act 1998.

England has, at present, 293 local licensing authorities.  Within that number, there are authorities already utilising the above powers. This includes, amongst others, Oxford City Council, Rotherham Metropolitan Borough Council, Brighton & Hove City Council and Portsmouth City Council.  Indeed recent Department of Transport (DfT) figures, within the ’Taxi & Private Hire Vehicle Statistics, England: 2018’ (25th October 2018), show 12 licensing authorities currently mandate CCTV for taxis and 10 for private hire vehicles.  A total of 261, without a set condition, also allow its use in taxis and 269 in private hire vehicles.

Legally, whilst permissible under Taxi Licensing Law, doubts over the use of such mandatory CCTV policies by licensing authorities did raise Data Protection Act 1998 (repealed) and Human Rights Act 1998 questions.  These were tackled, on appeal, in the key case of Southampton City Council v The Information Commissioner EA/2012/0171 (at paragraphs 33-34)

…in our judgement the Council’s policy, in so far as it requires continuous blanket audio-recording of everything said in taxis, is disproportionate when the extent of the interference with the right of privacy is weighed against marginal benefits to the legitimate social aims of increasing public safety and reducing crime in relation to taxis which are likely to result from it.  It follows from that conclusion that the policy is not justified under Art 8(2) accordingly that it contravenes the first data protection principle. 

Having reached that conclusion…we appreciate the nature of the problem and the special vulnerability of some taxi passengers, in particular children, those with disabilities and those travelling at night…It may be that bearing those points in mind, there is scope for a more targeted scheme involving audio-recording based on times of day, types of customer (…), the use of panic buttons or a combination thereof, which strikes a better balance between the competing considerations and does not contravene the Data Protection and Human Rights Acts. Any such scheme would be a matter for the parties to work out…

Judgement, as can be noted above, found in favour of the Information Commissioners Office (ICO) and against the licensing authority’s prescription of a “continuous blanket audio-recording” policy.  That being said, scope was still afforded for a “targeted scheme”.  Noticeably, it further states whether or not such a scheme achieves a “better balance” is a “matter for the parties”.  Accordingly, it implies, a licensing authority should consult, and satisfy, the ICO before adopting a CCTV requirement.  This would appear, subject to suitable safeguards, to support the proposal for audio-recording in Recommendation 17 above.

Intriguingly, as noted at paragraph 2.22 in ‘Paterson’s Licensing Acts 2017’ (125th Edition), the ICO made “…no objection to a requirement that there should be continuous video-recording…” in the case.  This would appear, again subject to suitable safeguards, to support the proposal for visual-recording in Recommendation 17 above.

A licensing authority, wishing to introduce a mandatory CCTV (audio or video-recording) requirement, must now also take into account statutory considerations brought in by the Protection of Freedoms Act 2012, General Data Protection Regulation (GDPR) (EU) 2016/679 and Data Protection Act 2018.  The obligations therein are regulated by the ICO and Surveillance Camera Commissioner (SCC).  Adherence, as directed by statute, is particularly expected with the provisions of the ’Surveillance Camera Code of Practice’ (June 2013) and ‘In the Picture: A Data Protection Code of Practice for Surveillance Cameras & Personal Information’ (Version 1.2) (2017).

Guidance to meeting those parameters, as applicable to the licensed trades, has been issued by the ICO.  The ‘Blog: Continuous CCTV in Taxis - Where Do Councils Stand?’ (14th August 2018) states–

Before introducing any new CCTV or surveillance system, councils need to stop, think and check that they’ve take the appropriate mitigating actions to minimise the risk of the loss or misuse of personal data captured by CCTV. The ICO has powers to stop the processing of personal data and to take action against any organisation breaking the law.

To this end, it recommends three steps to licensing authorities (a) “…consider the problem you are seeking to address and whether a CCTV system would be a necessary, justified and effective solution…, (b) “…conduct a Data Protection Impact Assessment (DPIA)… and (c) consult the aforementioned ‘In the Picture…’ code.  The SCC has published guidance, entitled ‘Data Protection Impact Assessment - Carrying Out A Data Protection Impact Assessment on Surveillance Camera Systems’ (2018), to assist DPIA performance.

Undoubtedly, as cited previously, a minority of licensing authorities have already successfully implemented mandatory CCTV obligations. The remainder are, seemingly, largely open to adoption. In the short-term, subject to stakeholder intervention, Recommendation 17 is realistic.

Longer-term, as also alluded to in Recommendation 17, CCTV forms part of a wider proposal for national minimum standards at Recommendation 2. The Task & Finish Group report states (at 3.8-3.12)–

Government should legislate for national minimum standards for taxi and [private hire vehicle] licensing - for drivers, vehicles and operators (…). The national minimum standards that relate to the personal safety of passengers must be set at a level to ensure a high maximum safety standard across every authority in England.

Government must convene a panel of regulators, passenger safety groups and operator representatives to determine the national minimum safety standards. Licensing authorities should, however, be able to set additional higher standards in safety and all other aspects depending on the requirements of the local areas they wish to do so.

Broadly, in terms of imposing national CCTV obligations, it reflects similar past intentions.  Indeed the Law Commission, in its ‘Reforming The Law of Taxi & Private Hire Services’ (No. 203) (2012) consultation, considered its merits whilst also discussing a proposal for national standards (at paragraph 15.10).  Ultimately, however, in the final ‘Taxi & Private Hire Services’ (No. 347) (2014) report, it concluded (at paragraph 5.52)–

It would be for the Secretary of State to set out whether CCTV was permissible, and under what conditions, in private hire vehicles. The approach to CCTV in taxis would be more nuanced: whilst it would be open to the Secretary of State to prohibit its use, if this were not   done local authorities would retain discretion as to whether or not it should be permissible.  We consider this to be an area in which guidance would be extremely useful, in order to encourage a consistent approach between local authorities.

The Government final position on the Law Commission proposals, and its corresponding draft Taxis & Private Vehicles Bill 2014, remains unclear and the future uncertain.  Whilst not rejected, they have not been adopted.  No national standards have, as yet, been implemented nor any blanket CCTV requirement.  It is noteworthy, the Law Commission conclusions formed part of the ‘Terms of Reference’ (at page 13) for the Task & Finish Group.

Notably, during the course of the Law Commission consultation, Richard Fuller MP independently proposed the Licensed Hackney Carriages & Private Hire Vehicles (Closed Circuit Television) Bill 2013.  This Private Members Bill was introduced, on 29th October 2013, to the House of Commons.  It, objectively, sought to “…require the installation of closed-circuit television in licensed hackney carriages and private hire vehicles…” and “…to establish a minimum standard for such installations…”.  This direct statutory approach, like the above indirect attempt at introducing a national CCTV requirement, failed to materialise.

Taking into account the limited progression on the above past reforms, over the intervening 4 years, it would appear unrealistic the envisaged national standards (with a mandatory CCTV requirement) in Recommendation 17 will come to fruition.  Progress will, perceivably, also be hindered by the ongoing political uncertainty surrounding Brexit.

Recommendation 18, and its costs mitigation, represents a sensible step that may or may not, dependent on the parameters, aid in the wider acceptance of localised mandatory CCTV requirements and equivalent national standards.  Additional information on any financial burdens will be essential for stakeholders.

The report, and mandatory CCTV recommendations, have been passed to the Secretary of State for Transport Chris Grayling MP, and also Parliamentary Under-Secretary of State for Transport, Nusrat Ghani MP.  Debate, and consideration, took place in the House of Commons on 13th November 2018.  It remains to be seen whether action will, or will not, be taken.

*Travis Morley Associates Limited accepts no liability for any action or inaction taken based on this article by an individual or party and where such action or inaction is taken it is done so at their own risk.