A warning shot from the Equalities and Human Rights Commission (EHRC) suggests that yet again, the UK government may be erring on the wrong side of the law – this time over the vexed question of airport scanners.
Legal opinion is on their side: a barrister has told El Reg that the current scanning regime may not only be unlawful – but criminal to boot.
In a letter to the Secretary of State for Transport, Lord Adonis, the EHRC has expressed concerns about the apparent absence of safeguards to ensure the body scanners, already in place at Heathrow and Manchester airports, are operated in a lawful, fair and non-discriminatory manner. It also has serious doubts that the decision to roll this out in all UK airports complies with the law.
Their argument, based on the selection of passengers for scrutiny, is that the current use of body scanners may already be breaking discrimination law as well as breaching passengers’ right to privacy.
They are demanding safeguards, such as monitoring who is being scanned and how those scans are carried out, to ensure that people are not being unfairly selected on the basis of their race, religion, gender, age, sexual orientation or disability.
Trevor Phillips, EHRC Chair, said: "State action like border checks, stop and search and full body scanning are undertaken for good reasons. But without proper care such policies can end up being applied in ways which do discriminate against vulnerable groups or harm good community relations."
Whilst the EHRC is concerned with the possible discriminatory use of scanners, El Reg today learnt about the concerns of one barrister who specialises in criminal law, and who is currently seeking more information on government policy on scanning.
Despite government claims that their policy on using scanners to scan children is compatible with existing child protection legislation, he has his doubts. First, because the "making" of an indecent image is a criminal offence – and does not cease to be a criminal act just because a government department issues guidelines on the matter.
That would be akin to a government department issuing guidelines authorising its officials to carry out illegal house searches (otherwise known as "breaking and entering").
Whether an image generated by the scanning equipment is illegal is not a matter for those viewing the images to determine. In other circumstances, when police have advised art galleries against displaying nude images of children, the presumption appears to be that such an image is de facto indecent. In strict practice, only a jury can determine whether the images in question are indecent.
As for the argument that such viewing is exempted from child protection legislation on the grounds that it is being done in order to detect a crime, our barrister is equally unpersuaded. Such sweeping "just in case" powers are not granted to any arm of the state: if they were, we might as well not bother at all with any limitations on police powers.
His own view of statements put out by the Department for Transport (DfT) is that they bear all the hallmarks of civil legal advice – and that the DfT have therefore failed to recognise the criminal implications of their actions.
A spokesman for the DfT would not respond directly to that suggestion. Instead, he told The Register: "The safety of the travelling public is our highest priority and we will not allow this to be compromised. However, we are also committed to ensuring that all security measures are used in a way which is legal, proportionate and non-discriminatory.
"That is why we have been absolutely clear that those passengers who are randomly selected for screening will not be chosen because of any personal characteristics, and why we have published an interim code of practice which addresses privacy concerns in relation to body scanners.
"Given the current security threat level, we believe it was essential to start introducing scanners immediately. We are currently carrying out a full equalities impact assessment on the code of practice, which will be published shortly when we begin a public consultation on these issues. We would welcome any comments the EHRC wish to make during this process." ®