(13 years ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
The Minister of State, Home Office (Lord Henley)
My Lords, respect for individual freedoms and civil liberties is one of the cornerstones of our parliamentary democracy. It is the duty of the coalition Government, as it is of any Government, to protect civil liberties and hard-won freedoms. Of course, it is also our duty to protect the security of the public. It is undoubtedly the case that we live in a dangerous world. We have to contend with the threats posed by international and domestic terrorism, and by crime, disorder and anti-social behaviour. The most basic freedom is the right to live in our own homes, and go about our everyday lives, free from the fear of harm from terrorism or crime, but in responding to such threats and discharging the Government’s core responsibility for protecting the public, we must not make the mistake of undermining the very freedoms and civil liberties that we are seeking to preserve and uphold as a beacon to others.
There is a balance to be sought here and that is what we will be endeavouring to achieve in the course of the debate during the passage of this Bill. It is a balance which I am afraid to say the previous Administration failed to achieve. They went too far on a number of issues. I will list a few of them: identity cards and the national identity register; the ContactPoint database; the indefinite retention of DNA profiles of more than 1 million innocent people; hundreds of new powers of entry; a vetting and barring scheme that required the monitoring of more than 9 million, and at one stage possibly 11 million, people working with children or vulnerable adults; indiscriminate and poorly targeted terrorism stop-and-search powers; removing the right to a jury trial in serious fraud cases; and last, but by no means least, 42 days’ and 90 days’ pre-charge detention for terrorist suspects. We have already abolished ID cards and the ContactPoint database, reduced the maximum period of pre-charge detention to 14 days, and your Lordships’ House is separately considering legislation to replace control orders. The Bill deals with the legacy of many of the other measures to which I have referred.
I turn to the detail of the Bill. Part 1 introduces safeguards in respect of the retention and use of biometric material by the police and schools. There is no doubt that DNA and fingerprints are invaluable forensic tools in the investigation of crime. They help to convict the guilty and, equally importantly, can exonerate the innocent. It follows that the national DNA database should contain as many profiles of convicted individuals as possible; nothing in this part of the Bill changes that. Where a person has been convicted or cautioned for a recordable offence, their DNA profile and fingerprints will, as now, be retained indefinitely. However, it is not acceptable that, following arrest, the DNA and fingerprints of a person should be retained indefinitely, regardless of whether that person is charged or convicted of an offence. Few people would support a truly Orwellian universal DNA database, so we should not seek to build one by stealth.
Under the Bill, whenever someone is arrested and has their DNA and fingerprints taken, the police will still be able to undertake a speculative search against the relevant national databases. If they have committed an earlier offence, they should not be able to evade justice. Indeed, it was just such a check in 2006 that led to the link being made between Mark Dixie, who had been arrested in connection with a fight at the pub where he worked, and his rape and murder of Sally Anne Bowman nine months before. If an individual is not subsequently convicted of an offence, their DNA and fingerprints will only be routinely retained where they have been charged with a serious offence, and then only for three years, with the option of extending this to five years with the approval of a magistrates’ court. The police will also be able to apply to the new Biometric Commissioner to retain the DNA and fingerprints of a person arrested for, but not charged with, a serious offence in circumstances where the alleged victim was vulnerable or where retention is otherwise considered necessary for the purposes of the prevention and detection of crime.
These provisions will ensure that the National DNA Database, with over 5 million profiles, remains one of the largest of its kind in the world, continuing to support the police by helping to catch and convict serious violent and sexual offenders, but without in the process stigmatising over 1 million innocent people.
The provisions in this part also give effect to our commitment to prohibit the fingerprinting of children in schools without parental consent. It is properly a matter for schools to decide whether or not to use biometric recognition systems for such purposes as pupil registration, cashless catering and checking out books from the school library. However, schools also need to have proper regard for the sensitive nature of personal biometric information, so it is right that parents should be asked to make an informed decision about whether to accede to the processing of such information. It is also proper that pupils should have a say. Where a parent or child objects, schools will have to take reasonable steps to ensure that alternative arrangements are put in place to enable the child to access school services.
Part 2 deals with the regulation of surveillance. Closed circuit television and automatic number plate recognition systems play an important role in the prevention and detection of crime and anti-social behaviour, and in providing assurance to local communities. I fully recognise that many people want to see more CCTV cameras in order to help protect their neighbourhoods. However, as we saw with Project Champion in Birmingham last year, public confidence in the benefits of CCTV can quickly be undermined if the police, local authorities and others are seen to be imposing camera systems on local communities without proper consultation. In this regard, I look forward to hearing from the noble Earl, Lord Erroll, who assisted the Chief Constable of Thames Valley Police as part of her review of Project Champion.
The Bill takes a measured and incremental approach to the further regulation of CCTV. It provides for a code of practice on the development and use of surveillance camera systems and for the appointment of a Surveillance Camera Commissioner to oversee the operation of the code. The police and local authorities will be required to have regard to the code of practice, and we would expect that other operators of CCTV systems will also wish to adhere to the code on a voluntary basis. However, if the need arises, there is facility in the Bill to extend the duty to have regard to the code to other such operators.
The need to maintain public confidence is also at the heart of the proposals in the Bill in respect of local authorities’ use of covert investigatory powers. The intrusive powers covered by the Regulation of Investigatory Powers Act, known as RIPA, must be used proportionately. Public trust is undermined if such powers are used to pursue relatively trivial matters, such as to check whether parents live within a school catchment area or to tackle dog fouling or littering. The Bill therefore subjects the exercise of these powers by local authorities to judicial oversight and, separately, we will be bringing forward secondary legislation under RIPA to introduce a threshold test so that local authorities cannot use directed surveillance powers for trivial purposes.
Part 3 of the Bill deals with powers of entry and wheel clamping. There are now some 1,200 separate powers of entry, enabling a wide variety of officials to enter people’s homes and businesses. We do not for a moment suggest that all such powers are unjustified, but there should be a compelling case and clear safeguards before a state official has the right to demand entry into a person’s home. We intend to review all existing powers of entry. Following this review, the provisions in the Bill will enable us to repeal any powers of entry that are shown to be unnecessary or unjustified, and to add further safeguards to those powers that are to be retained. We will also introduce a code of practice governing the exercise of powers of entry.
In many ways, my noble friend Lord Selsdon can take credit for these provisions. In the last Parliament he repeatedly plugged away at this issue, introducing a succession of Private Members’ Bills. I am pleased to say that his tenacity has now borne some fruit.
Moving on from protecting people’s homes to protecting use of their vehicles, I have no doubt that a number of noble Lords will have suffered the fate of having their car clamped. While there are, of course, many reputable clamping companies, the industry is also afflicted with more than its fair share of rogue operators using menace to demand and extract excessive release fees from unsuspecting motorists. This is an area where regulation has failed to tackle the abuses in the industry. We have therefore concluded that, where there is no lawful authority, an outright ban on wheel clamping is the only tenable way forward. We recognise that for some car park operators and other landowners the ban will remove one of the parking enforcement tools available to them. We also recognise that no one has a right to park their vehicle wherever they want—motorists have responsibilities too. So the Bill extends the operation of keeper liability for unpaid parking charges, which already applies to parking enforcement on the public highway, to other land.
I move onto Part 4, which reforms key counterterrorism powers following the government review overseen by my noble friend Lord Macdonald of River Glaven.
The Bill enshrines in law our expectation that the maximum period of pre-charge detention for terrorist suspects should be no more than 14 days. That is an important advance on the position adopted under the last Government, when 28 days became the norm.
The Government recognise, however, that there will be exceptional circumstances where it may be necessary to increase the maximum period of pre-charge detention to 28 days. This view was supported by the Joint Committee chaired by the noble Lord, Lord Armstrong of Ilminster. As to the mechanism for achieving this, the Government reflected very carefully on the views of the Joint Committee but remained of the opinion that any increase to 28 days should normally be decided by Parliament and enacted through primary legislation. We accept that the option of recalling Parliament to pass fast-track legislation is not available during a period of dissolution. That is why the Bill contains a power to enable the Home Secretary to increase the maximum detention period by executive order in those very narrow circumstances.
Part 4 also puts in place the permanent replacement of the no-suspicion stop-and-search powers contained in Section 44 of the Terrorism Act 2000. That these powers failed to meet the test of necessity and proportionality is best illustrated by the fact that not one of more than 600,000 stops in Great Britain under Section 44 resulted in a conviction for a terrorist offence. Instead, the Bill provides for a much more targeted power that the independent reviewer of terrorism legislation, David Anderson QC, described as a “real and substantial change”.
Part 5 gives effect to the recommendations of the twin reviews of the vetting and barring scheme and the criminal records regime. We have a duty to protect the most vulnerable in society, be they children or adults. The Government will do nothing to increase the risk of such individuals being exposed to harm. However, we need a safeguarding system that is proportionate and promotes responsibility by employers and voluntary organisations while not putting in place unnecessary barriers to employment and volunteering. The existing system fails to live up to these aims. At worst, it creates an illusion of security by encouraging a tick-box approach to safeguarding.
The Bill creates a more balanced approach, putting an end to the requirement on more than 9 million—or, as I said earlier, 11 million—people to be registered and monitored by the state. We are also scaling back the scope of regulated activity and therefore of the barring arrangements so that they cover only those in regular or close, unsupervised contact with children, or those who provide health or personal care for adults. In the case of those working with children or adults but who do not fall within the ambit of regulated activity, it will remain open to employers and voluntary organisations to require such staff to undergo a criminal record check.
We are also streamlining the criminal records regime, including by ensuring that criminal record certificates are portable between posts within the same sector. The fairness of the system will also be enhanced by affording the subject of a criminal record certificate the opportunity to challenge any conviction or other information contained therein before sharing the certificate with his or her employer or voluntary organisation. In addition, we will increase the efficiency of the reformed safeguarding system by bringing together into one new organisation, the disclosure and barring service, the functions of the Criminal Records Bureau and the Independent Safeguarding Authority.
Part 5 also rights an historic wrong. It is now more than 40 years since gay sex between consenting adults was decriminalised. However, men with a conviction for an offence involving such behaviour are still stigmatised by having to disclose any such convictions and seeing them recorded on criminal record certificates. The Bill puts an end to such indignity.
Part 6 has the twin aims of further promoting transparency, including by extending the application of the Freedom of Information Act to additional publicly owned companies, and by enhancing the independence of the Information Commissioner. Given the commissioner’s important role in regulating information rights, including data protection and freedom of information issues, it is critical that he should go about his duties without fear or favour. There is no doubt in my mind that the current commissioner and the previous holders of the office have done that, but the provisions in this part of the Bill will help remove any impression to the contrary.
Finally, Clause 107 is a culmination of the implacable stand taken by your Lordships’ House in defending the historic right to a jury trial of those accused of a serious fraud offence. In 2003 and again in 2007, this House defeated attempts to bring in judge-only fraud trials. Clause 105 consigns the thankfully uncommenced Section 43 of the Criminal Justice Act 2003 to the legislative dustbin.
I appreciate that I have spoken at some length and that this undoubtedly is a diverse range of provisions. The golden thread running through them is a determination on the part of the Government to restore a proper balance between protecting our communities, including the most vulnerable, and our hard-won civil liberties and historic freedoms. It is this difficult balance that your Lordships’ House has striven to maintain when discharging its core role as a revising Chamber, and which we shall seek to secure as we debate further stages of the Bill. I commend it to the House.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister for his comprehensive introduction to the Bill. We may hear many fine speeches today that will characterise the Bill as a choice between protecting historical liberties and the march towards authoritarianism. However, I agree with my right honourable friend the Member for Blackburn, who said in another place that this is more a standard criminal justice amendment Bill than a sweeping redress of the balance of freedoms in this country. Some parts of the Bill present us with a stark choice not between freedom and the Orwellian state but between tiresome, sometimes intrusive inconveniences and increasing the risks to public safety. Regulation of CCTV, limits to the DNA database and crucial changes to the vetting and barring regime all present us with such a choice, and we are deeply concerned about the potential impact that the provisions may have on some of the most vulnerable communities in our society.
I will begin with the positive aspects of the Bill. We give our wholehearted support to the provision to erase historical convictions for gay sex that for far too long have blighted the lives of many gay men. We also welcome the extensions to the Freedom of Information Act 2000, but I ask the Government to look at the needs of universities and other public research organisations in relation to research and progress. In addition, we support amendments to RIPA that aim to obtain greater proportion in the scope and use of powers, and we are very happy to allow people to get married whenever they desire. The reduction in the pre-charge detention of terrorist subjects from 28 to 14 days is another thing on which we can agree on the basis of evidence, and of course we support the restriction on stop and search powers.
We also firmly support the Government's intention to crack down on cowboy clampers who have bullied and harassed members of the public. However, we are disappointed that the Government are not also seeking to ensure that there is proper regulation of the private ticketing regimes that the Bill establishes as an alternative. In the other place, the Minister said that effective self-regulation by the parking industry was the way forward. However, this issue has arisen precisely because industry self-regulation has proved totally ineffective. We are concerned that the Government's best intentions will do little more than squeeze the balloon, turning thug into extortionist as rogue clampers turn into rogue ticketers. Citizens may well turn to Citizens Advice, which dealt with more than 16,000 parking inquiries last year. However, it is under huge pressure as a result of the cuts.
Other aspects of the Bill give rise to deep anxiety and betray a fundamental distinction in our parties' attitudes towards risks to the vulnerable in our society. I am sure all noble Lords would agree that the use of closed circuit television footage during the August riots helped the police to identify and charge almost 2,000 suspects. CCTV forms a central part of police investigations. It makes people feel safer and is especially important to those living in troubled neighbourhoods. Local authorities and police forces are struggling with eye-watering budget cuts and redundancies, yet the Government are proposing to pile extra red tape on authorities that wish to set up CCTV in their area. Do they believe that local authorities and police forces have a fundamentally more sinister use for CCTV than private operators? If there is a genuine need for regulation, why do the Government not think fit to extend the safeguard to the vast majority of CCTV that is privately owned?
Technology has revolutionised the prevention and detection of crime in this country, and nowhere more so than in the use of DNA evidence. DNA provides 40,000 crime scene matches a year and alongside fingerprints provides a critical component of investigations into the most serious crimes of murder, manslaughter and rape. The Crime and Security Act 2010 proposed that the DNA of those arrested or charged with, but not convicted of, a serious recordable offence be held by police for six years. This was based on Home Office analysis that shows that the risk of re-arrest falls to the level of the general population after six years. Part 1 of the Bill reduces this limit to three years. The Conservatives were convinced by this argument in opposition and voted for a six-year limit. Why do they now wish to halve it? What new evidence has caused this U-turn, other than the ideology of their coalition partners?
The retention of DNA of those arrested or charged but not convicted is especially important in the case of rape, which suffers notoriously low charge and conviction rates. We know that it is often only after repeat offences that rapists are finally convicted. As a result of this Bill, 17,000 rape suspects would be immediately removed from the DNA database. Experience shows that some, although not all, of these individuals will go on to commit further serious violent and sexual offences. In fact, the Government know that they are creating a significant public safety problem here, which is why instead of capping retention to three years they have included a provision to extend retention by an extra two years. In an effort, perhaps, to pacify Liberal voices, the Government are offloading responsibility for key public safety decisions on to our stretched police forces.
There are numerous cases in which murderers and rapists have been convicted only because their DNA samples were retained on a database for more than three years. To reduce the number of years is both irresponsible and dangerous. Part 5 of the Bill makes significant changes to the vetting and barring scheme that was introduced in the wake of the horrific murders of Holly Wells and Jessica Chapman at the hands of their school caretaker. As noble Lords will know, the previous Labour Government, having recognised the weight of unnecessary burdens, implemented the recommendations of Sir Roger Singleton's report, which reduced the number of individuals needing to register with the ISA by approximately 2 million.
However, we believe that this Bill goes far beyond removing simply “unnecessary” burdens, and presents a serious risk to the advances that the scheme has made to child safety. The new barring regime would no longer include those who work in supervised situations with children or vulnerable adults. Charities, including the NSPCC, argue that this fundamentally misconceives the nature of supervision in places such as schools and care homes, where light-touch supervision means that there is often opportunity for an individual to develop inappropriate and abusive relationships with the child or adult. Furthermore, those convicted of serious barrable offences who do not currently work or express an interest in working with children will not be placed on the barred list at all.
This cannot be right. It is interesting to note that an online survey conducted by Fair Play for Children found that 96.6 per cent of respondents felt that adults convicted of offences against children should be placed on the barring list as soon as they are convicted.
We welcome the introduction of new portable Criminal Records Bureau checks. However, like Girlguiding UK, for example, of which I am a proud member, we are greatly concerned about changes that would mean that the CRB checks are sent to individuals before employers.
The coalition agreement states that the vetting and barring regime should be scaled back to common sense levels. We believe that this Government are at fundamental odds with the “common sense” of the majority of the public in not choosing to err on the side of caution when it comes to the safety of the most vulnerable in our society. I am glad, however, that this Bill presents us with an opportunity to address an important loophole in our law that means that those subject to sustained and harrowing experiences of stalking are not receiving the recognition and protection that they need and deserve.
Stalking behaviour is consistently unidentified and underestimated by the criminal justice system. The lack of legal definition of a stalking offence means that the police, probation officers and the courts will look at offences in isolation; as a result, patterns of behaviour are often not spotted until a serious offence is committed. Clare Bernal, for example, was shot dead in a Knightsbridge store in September 2005 by Michael Pech. Pech had stalked Clare after their three-week relationship ended, following her in the street and bombarding her with threatening calls and messages. However, after being arrested and charged with harassment he was bailed and travelled back to Slovenia, where he purchased the gun that he used to shoot Clare while awaiting sentence. We need greater clarity in the law to ensure that other women do not have to experience what happened to this young woman. There are hundreds of similar harrowing examples of women living in terror and sometimes being murdered.
I know that the Minister is a fan of the Scottish model for other provisions within this Bill, so I hope he will support changes to the Protection from Harassment Act 1997 that are similar to those introduced in Scotland last year and that would make stalking a specific offence, thereby naming and defining this poorly understood crime.
In the 10 years prior to the introduction of the offence of stalking, Strathclyde police reported a total of 70 stalking-related prosecutions. In the first six months after the enactment of stalking laws in Scotland, there were 140 prosecutions in Strathclyde alone, with an estimated 500 to 600 prosecutions in the whole of Scotland by the end of this year.
A similar small but crucial change in the law would mean that the 18.1 per cent of women estimated by the British Crime Survey of 2010-11 to have been a victim of stalking could seek greater protection. I hope that noble Lords on all sides of this House will support an amendment to this effect.
Earlier this year, the Home Secretary announced with much fanfare that this Bill,
“gives us a chance to ... return individual freedoms to the heart of our legislation”.—[Official Report, Commons, 1/3/11; col. 205.]
In many ways this is hyperbole, but by creating barriers to CCTV use, limiting DNA retention and restricting the vetting and barring scheme, exactly whose freedoms are being returned? Certainly not the freedom of local businesses, some of which suffered in the riots but were able to see the perpetrators brought to justice thanks to CCTV; nor the freedom of young women to feel safe walking the streets late at night; nor the freedom of children and young people, who in future could be supervised by paedophiles or others who have been barred.
I note the comments made by the Minister about balance. At the moment we believe that the balance is wrong. Some parts of this Bill are welcome but critical parts of it deserve close scrutiny and amendment. Together with my noble friends Lord Rosser and Lord Tunnicliffe, I look forward to working with the noble Lord and the noble Baroness, Lady Stowell, to ensure that there is better balance in this Bill.
Baroness Hamwee
My Lords, the Minister’s careful exposition of the Bill has been most helpful. I welcome the Bill with enthusiasm—such enthusiasm that I look forward to successor Bills taking civil liberties even further forward. It is a pleasure to be repealing legislation, particularly restrictive legislation, even if it takes 200 pages to do so. I do not regard this as a standard criminal justice Bill of the sort that we have become used to in recent years. I depart from the noble Baroness, Lady Royall, on that, but no doubt we will discuss it. However, I would also say that repeal should be a matter for Parliament, not for Ministers.
In our complex society technology seems to be matched by the technicalities of legislation, but the underlying concepts are simple: fundamental human freedoms, historic civil liberties and a state which has become authoritarian—certainly too authoritarian. We have all become accustomed to the demand, “Your ID, please”; we are too used to having to prove who we are. I heard—I think it was on the radio a few days ago—of an 80 year-old who was refused a purchase in an off-licence because she could not prove that she was not a teenager.
The worst thing is not knowing what is known about you. This is about the relationship between the consumer and Tesco—which is almost nil in my case, but one could say any other retailer—or between an IT user and a search engine operator, or, of course, between the citizen and the state. The obtaining and retention of information changes the relationship between citizens and the state.
I am not applying this comparison wholesale or in its entirety; however, thinking about today’s debate, one characteristic of fascist regimes seems to have been an obsessive collection and retention of information. There was certainly one regime of which that was characteristic, anyway; I am not sure whether the Italians were too chaotic to have been able to achieve it.
We talk a lot about policing by consent, and I have been wondering what that means in the year 2011. We should also ask ourselves what is the extent of consent of the citizen to observation, surveillance, the keeping of records and the sharing and use of information. That is not easy because what I may think should be applied to you and to everyone generally—that means everyone else—is not the same as what I think should be applied to me. Ask anyone who has been involved in local government: we all know of the demands for blanket CCTV coverage in order to catch the owners of dogs that foul the streets.
The existence of more than 4 million surveillance cameras makes me wonder whether their very proliferation reduces their deterrent value because they are so commonplace. They are not uniformly applied. There are three times as many automatic number-plate recognition cameras in two predominantly Muslim suburbs of Birmingham as there are in the city centre.
We have more mobile phones than we have people. We rely on them. We have a very high expectation of technology. I have a friend who, in her worst moments of tussling with her computer, calls it “the devil’s work”.
I remember the shock when people realised what information about their movements in London was stored on the Oyster card—so-called, we were told at the time of its introduction, because of the pearl inside the oyster. It is not just a single pearl; it is a whole jewellery box, if that is your view of it.
Our private lives are trespassed upon without our realising it. It is important, and I wish that I had thought of this, to draw the distinction between the right to privacy and respect for privacy. We should remember, too, that there are social pressures to share information. Your own inclusion of information on a social networking site can make you quite vulnerable.
Guidelines and codes of practice can be only as good as their operators. We saw what happened with Section 44 stops and searches. No doubt we will use the words “balance” and “proportionality” a great deal in our debates. We will range from the administrative convenience of using biometric information about children in schools and, I would say, the inevitable pressure on parents to consent to their use, to how appropriately—another good word, but sometimes a weasel word—to protect the rights of landowners from those who see a space and park on it.
At this stage of the Bill I am trying to look at broad principles, not least because a speech on the detail would take me far too long. Another principle is the law of unintended consequences, and the noble Baroness, Lady Royall, has referred to the impact of the extension of freedom of information to university research. I mention it specifically because my noble friend Lady Brinton, who cannot be here today, had wanted to do so. The problem is that even if a subject is still being investigated, is not yet patented, published or peer-reviewed or is part of a commercial and confidential contract with a partner outside the institution, it will still be caught. The Scots, under the guidance of my noble and learned friend Lord Wallace of Tankerness, when he was part of the Scottish Government—ahead of the rest of us, as so often—got this sorted, and so should we.
So we are looking at balance, proportionality and a good dollop of common sense, but the safeguards must not be illusory. I welcome the involvement of the judiciary in many of the matters covered by the Bill. We may have debates about what is appropriate as an executive decision and what should be a judicial decision, but we may need to explore the criteria for decisions that we require our magistrates and our more senior judges to take. I am not talking just about the exercise of powers of entry but, for instance, about the extension of the retention of DNA. What will be the basis for the judicial decision? For instance, what would be the standard of proof for something that was not actually a trial?
I have referred to safeguards and codes of practice. If there is more than a single regime, as there is with CCTV, we will need a lot of clarity and co-ordination between the regimes.
I do not know what the collective noun is for commissioners but we certainly need clarity and joining up about the respective responsibilities of existing and proposed commissioners, looking at it not least from the point of view of the public and trying to avoid confusion in the public mind. Let us also be sure that the independence of commissioners is real, not rhetorical.
I will try to restrain myself from seeking to add to the Bill, not least because I see this as the start of a process of a strand of legislation, but I will indulge myself by mentioning just one issue on which I have heard the current Information Commissioner talk: the need for a more effective response to blagging—that is, the unlawful accessing of personal information by trickery. If a private investigator blags information he can treat it as a business expense, so, far from there being a deterrent penalty, the taxpayer is actually subsidising the activity.
The Bill will be referred to as a Christmas tree Bill and it remains to be seen what baubles will be hung on it. I suspect that the Minister will be very cautious about getting out a piece of mistletoe and—I am searching for a verb—connecting with anyone.
The line of argument with which we are all familiar is, “If you’ve nothing to hide, you’ve nothing to fear”. I have nothing to hide—at any rate, nothing more than the usual embarrassments that we all have—but I fear the invasion of your Lordships’ privacy. This is about the sort of society that we want and how far, if at all, we should condition our rights. I welcome the Bill.
Lord Bew
My Lords, I welcome the main thrust of the Bill. With regard to the reform of counterterrorism powers, the Bill has a good balance. I say that as a Member of this House who has had reservations about the control order legislation that the Minister has before the House. In this case, I am glad to say that the Bill has got the balance right between public safety and a proper liberalisation of our law. I welcome what the Minister said about the removal of an historic indignity with respect to the gay community. I regard that as a wise and noble step in the Bill. I should also like to say that the Northern Ireland matters are handled effectively and well, as they touch on many parts of the Bill.
I have one major problem. It touches on matters dealt with in and around Clause 100 on freedom of information and its working with respect to our universities. This has already been referred to by the noble Baronesses, Lady Royall and Lady Hamwee, and I think it will be referred to again before the debate is concluded. I have to declare an interest. My own university, Queen’s University Belfast, has been rather caught up in the toils of this debate, and I am a professor at that university. While I indicate broad support for the Bill, I wish to explain why there is a case for an amendment to it to provide an exception in certain limited circumstances to pre-publication research in universities in relation to Freedom of Information Act requests. A similar exemption already exists, as the noble Baroness, Lady Hamwee, said, in Scottish freedom of information legislation, and there is a strong case for looking at that.
In my own university there has been an intense controversy concerning a well publicised case concerning tree ring data, which has very much influenced the public discussion in recent times about the operation of the Freedom of Information Act in universities. That work on tree ring data, while important, is in no way connected with my own work or the work of my own department. However, anybody who works in a university knows that the operation of the Freedom of Information Act has changed the way that we work often in quite difficult and unpredictable ways. Universities have to work within the broad framework of public law in this matter—that is widely accepted—but this is one area where there is genuine concern, shared, for example, by Universities UK. I am confident that there is a need to protect the timing of publication of research information and results. Research is highly competitive in our universities at the moment and it often has a commercial value of some significance. There are delicate issues of timing involved in such matters, and the publication of incomplete data and premature research prior to proper peer review, as the noble Baroness, Lady Hamwee, has mentioned, may damage the reputation of research in the United Kingdom. Perhaps even more importantly, the premature publication of work that is not properly peer-reviewed and fully examined may harm the interests of the general public themselves. In other words, this is a matter of concern not just for universities but for the general public as well.
The Scottish amendment that has been referred to is in fact a qualified amendment where it has to be shown that disclosure would result in substantial prejudice to the research, to those conducting it or to the university. It is not an absolute exemption. It is a qualified and quite subtle piece of legislation. If the Minister is a fan of the Scottish legislation in other respects, as the noble Baroness, Lady Royall, said, I hope that by the time we conclude our discussion of this Bill he will become a fan of the Scottish legislation in this respect also.
The Lord Bishop of Bristol
My Lords, the word “freedom” is a heady one. Throughout the ages people have struggled to resist and overthrow oppression, most recently in the so-called Arab spring. Freedom from violence, intimidation, unjust treatment and arbitrary interference by others, especially by the state, is clearly good. But freedom, having been gained, needs constantly to be protected, and in recent years Governments have become a little careless about this. That is what prompts this Bill and for that reason I welcome it.
However, the exercise of freedom is not entirely straightforward. The freedom that I have been talking about is what Sir Isaiah Berlin famously called “negative liberty”—that is, freedom from outside interference and coercion. That freedom is constantly misused to commit wrongs and damage other people, as repeated historic infringements remind us. The law has to deter and restrain such behaviour, which means that freedoms sometimes need to be curtailed, as the European Convention on Human Rights and Fundamental Freedoms—let us not forget its full title—provides.
As my noble friend the Minister has eloquently reminded us, the law has to attempt a balancing act, protecting freedoms, because they are essential to human flourishing, and where necessary restricting them in the public interest. When we have a Bill such as this before us, we have to ask whether the balance that it strikes is right in particular cases. I want to mention several areas in which the balance seems to me to be right and others where it is more questionable.
I welcome the provisions to amend anti-terrorism legislation. The reduction of the maximum pre-charge detention period to 14 days is overdue, though I wonder how viable the scheme for emergency extension will be. Similarly, the replacement of stop and search powers under Section 44 of the 2000 Act is, in view of their misuse, long overdue. The abolition of wheel clamping on private land should put an end to a highly objectionable and exploitative practice. The restriction of powers of entry brings order and proportion to a proliferation of laws that have become highly intrusive. I back the protection of biometric information on children in schools, with parental consent being required for processing information. In view of the accusation that the Church of England is institutionally homophobic, I am glad to support the disregarding of convictions for historic consensual gay sex offences.
There remain two areas of the Bill over which many people have substantial reservations. The first is the retention of fingerprints and DNA data on the police database. I understand why the Government have opted for a three-year retention period, but I worry that it tips the balance too far away from effective law enforcement by reducing the possibility of convictions for serious offences. The shadow Home Office Minister in another place argued that, if a retention period of six years were kept for the moment, a detailed analysis of DNA retention would provide more evidence to decide on the optimum length of the retention period. This argument appears to me to have force, especially since information once destroyed cannot be retrieved. The precautionary principle should be given weight here in case the consequences of the Bill turn out to be unexpectedly adverse.
Secondly, the Christian Forum for Safeguarding and a number of children’s and sporting organisations have serious concerns about safeguarding vulnerable groups and criminal record checks. The reduction of bureaucracy in this area is to be welcomed, but the provisions on barring narrow the scope for scrutinising individuals and the definition of regulated activity, and so make it more difficult to identify and bar people who represent a risk to children. There are also problems with the criterion of supervision for exempting positions from regulated activity and the production of a single certificate to the applicant only. Regrettably, the Bill fails to provide for enhanced CRB disclosures for those outside the sphere of regulated activity who have significant contact with children or vulnerable adults.
One issue raised at Second Reading in another place was the criminalisation in Section 5 of the Public Order Act 1986 of “insulting”, as distinct from “abusive” and “threatening”, words or behaviour. This has sometimes been used against people expressing controversial opinions in the street or elsewhere and it is arguable that it provides too low a threshold for an offence which restricts freedom of expression. I hope that the Government will think again about the matter.
In addition to the negative freedoms protected in this Bill, we must as a society nurture and promote the positive freedom to choose wisely and act rightly. This is something beyond the reach of government and law, but families, communities and institutions have a vital role in teaching and enabling children and adults to use their freedom not for selfish, destructive ends but for good purposes and for the benefit of others.
Freedom is always exercised in relation to others. As Joseph McLelland wrote,
“‘Autonomy’ should not mean freedom to choose … whatever one wills, but responsibility for what one chooses”.
With this background in mind, I support the general direction of this Bill.
Lord Freeman
My Lords, it is a pleasure to speak after the right reverend Prelate and I am very pleased that, given the decision of the House earlier on, I am still able to pay tribute to him with his proper title. I agree very much with what he has just said.
I support this Bill. It has been some time in gestation and, although some parts of it might need further consideration in your Lordships’ Committee, I think that this Bill needs to be hastened to the statute book. It is well balanced. I agree with the noble Lord, Lord Bew, in his comments on its construction and content.
First, I pay tribute to the noble Lord, Lord Armstrong of Ilminster, who chaired the Joint Committee of the Commons and the Lords, on which I served, which looked at the provisions dealing with detention before trial. I am sure that my noble friend Lord Goodhart, who will be speaking later, will wish to comment.
I shall concentrate on Clause 58, which deals with pre-trial detention. As noble Lords will well know, this issue has been batted back and forth over many years in terms of the length of detention before trial. For many of us, it has been an annoying bone to gnaw on for many years, so I am delighted that we have now settled on a sensible period of 14 days as the norm. I support the Home Secretary, who has been at the forefront of trying to deliver a message, not just to the police forces and our security services but to the public at large, that this should be the norm. Gone are the days when we were talking about several multiples of that period as an aspiration.
As your Lordships will know, the 28-day period effectively lapsed in January this year, and we are now back to a standard 14-days maximum detention before trial. The Joint Select Committee of your Lordships' House and the other place took evidence from not only the police but former Home Secretaries, who warned of the serious risk that there might be individual cases, and perhaps collective numbers of people, who might need to be detained beyond 14 days before trial, but that was very much the exception.
A lot has changed in the past few years. We have extra resources for the police forces and our security services, new technologies that identify where people are coming from and electronic devices to understand where the threat might come from, whether individuals or groups, but the threat remains. As we come up to the Olympics, our security services are acutely aware of the prospect of—heavens above—multiple terrorist threats. Your Lordships will wish that those never happen, but the security services and the police are taking them very seriously. Therefore, we need a provision to go to 28 days in exceptional circumstances.
The Joint Committee of your Lordships' House and the House of Commons came up with a recommendation that has not been fully accepted by the Government, except that there is a provision that, when Parliament is sitting, the Government in the form of the Home Secretary—and, in your Lordships' House, the Minister responsible for the Home Office—would bring forward an order to extend the period and would explain why that was necessary. However, there is a danger, which we need to reflect on. It is very important not to prejudice the case of an individual or group of individuals, so I think that we must accept this provision but we must make sure that we preserve proper legal proceedings and the justice of the case as well as protect our security.
I am pleased that the Government have accepted that, when Parliament is not sitting, the Home Secretary should be responsible for acting to extend the period to 28 days, subject to a number of provisions, particularly as far as the Director of Public Prosecutions is concerned. If Parliament cannot be recalled because it has been dissolved before an election, there must be a provision, in exceptional circumstances, to go to 28 days. This compromise is workable. It was not the recommendation of the Joint Committee, but I support it.
I very much support the Bill and look forward to its further and rapid progress.
Baroness Miller of Chilthorne Domer
My Lords, the Bill marks an important moment. It is the start of the turn of the tide from a very low point where sophisticated new technologies, fear of terrorism, authorities with little regard for privacy and a series of illiberal Home Secretaries combined to make the UK “surveillance Britain” under the previous Government. So when Justice called the proposals a sticking plaster, it missed the point. This Bill is a very important first step in addressing what privacy and freedoms should mean in the 21st century. Justice has just published an excellent new publication Freedom from Suspicion - Surveillance Reform for a Digital Age, which highlights the fact that we have moved into a new era that existing legislation is not able to cope with. It did not anticipate the rapidity of technological advance, which is enormous. The scale of technological capability is beyond anything that was imagined, even when the Regulation of Investigatory Powers Bill was drafted.
In common with all noble Lords, I can remember when opening someone's post without proper authorisation was a serious offence, yet in the internet age, popping in to their IP address and having a look at what they are up to is not taken as seriously as it should be. An example is that, legislatively, RIPA offered protection when, in 2006, BT and Phorm decided to run a secret trial of marketing software that intercepted the private internet sessions of thousands of customers. It was illegal, but the CPS took no action. That set a very bad precedent that ignoring RIPA is not serious.
In April this year, the Information Commissioner said:
“RIPA was drafted for the wiretap age”.
The Law Society’s comments are similar. In its written evidence to the House of Commons Public Bill Committee on this Bill, it stated that RIPA is,
“a confused and complex legislative framework for surveillance, along with equally complex and overlapping oversight arrangements”.
Other examples of the technologies give us an idea of the complexity. The Guardian has highlighted that the Metropolitan Police are operating covert surveillance technology with a signal that shuts off mobile phones remotely, intercepts communications and gathers data about thousands of users in a targeted area. That has big implications for the right to protest and freedom of expression. The Met has also purchased software to map digital movements using data gathered from social networking sites, sat-nav equipment, mobile phones, financial transactions and IP network logs.
How should this be regulated? Clause 37 gives the Secretary of State welcome power by order to require judicial authorisation for targeted surveillance authorisations by other public bodies, but I would like us to debate in Committee an amendment providing that prior judicial authorisation would be an integral part of the whole system. Such authorisation would have picked up the disgraceful, long-term and costly surveillance operations undertaken by the police on peaceful environmental movements.
How do we as parliamentarians assure ourselves that such capability is being used in the right way? We have the commissioners—my noble friend Lady Hamwee mentioned that we do not have a collective noun for a group of commissioners—and the Bill adds two new ones: the Surveillance Camera Commissioner and the Commissioner for Retention and Use of Biometric Material. The problem is that the commissioners have different roles and areas of responsibility that have been built up in a very piecemeal way. There are not overlaps but there are gaps in responsibilities. I would like to explore whether we would be better served by one privacy commissioner with an overarching role. We know that the Chief Surveillance Commissioner has quite limited powers. His function is just to keep under review the operation of the powers and duties of directed and covert surveillance. The Interception of Communications Commissioner’s role is limited to the oversight of those who issue warrants and the procedures of those acting under warrants. He has no power to investigate complaints or to advise the public.
The best model—the Information Commissioner—is responsible for promoting and enforcing compliance with the Data Protection Act 1998. It is this role of advising the public that is really important. Citizens need an independent powerful figure—who is outward-facing to them, as well as inward-facing to the authorities operating under the various legislative frameworks including RIPA. We have a lot of work to do in this Bill just to keep up with the capabilities of the technology. I welcome a debate on how to do that.
I particularly welcome the repeal of Section 44 of the Terrorism Act 2000: “stop and search”. It is very welcome indeed. I also welcome proposals that will see the destruction of the DNA samples of those arrested and charged with a minor offence but never convicted. I am, however, very disappointed that the position of children arrested or charged but never convicted of serious offences is unchanged. We need to examine that closely in this House. Finally, I am disappointed that there is no amendment to the Criminal Justice and Public Order Act 1994 so that it recognises peaceful protest as a fundamental part of democracy. It leaves in place the “aggravated trespass” offence. That was recently employed, for example, against all the individuals who were peacefully protesting with UK Uncut at Fortnum & Mason earlier this year in March. That use of “aggravated trespass” is an affront to the concept of peaceful protest.
Baroness O'Neill of Bengarve
My Lords, this Bill has quite a grand Title but a somewhat miscellaneous feel. Although this is a Second Reading debate, I will concentrate on one part of the Bill, which has already been mentioned. I hope to ask the Minister a range of questions about Part 6, which makes provision for the publication of data sets held by public authorities. I am not against what is generally called “transparency”. In fact, it is a great deal weaker than most people suppose. Transparency is an antidote to secrecy; its defect is that it is no guarantee of communication of any sort. That form of quasi communication can sometimes create an illusory advance in the things we try to do.
As I understand it, the Bill covers data sets which are neither government data—that is, produced or commissioned by government or government-controlled entities—nor official statistics. Both government data and official statistics are, after all, already subject to requirements for openness. The intention of the Bill is to bring data sets held by other public authorities—the term is slightly curiously used here—under similar, though not quite the same, requirements for openness. The other public authorities, I take it, include not only local authorities but, above all, universities, hospitals and research institutions and, no doubt, the publicly owned companies to which the Minister referred. I am not quite sure what sort of companies those are because I note that hospitals, universities and research institutions are not companies and are not publicly owned companies.
It is a complex problem and I should declare a non-pecuniary interest at this point as a member of the Royal Society Working Group on Science as a Public Enterprise. This group is looking specifically at the problem of scientific data sets—which are not always published, even when there are publications—and will report within the next few months.
Let me now return to the Bill. Given that the period within which institutions have to respond to requests to make data available is very short—three weeks or fewer—it seems to me that one effect, or perhaps purpose, of this Bill is to require investigators to make research data available on an ongoing basis, if requested, and in an ongoing way. Can the Minister confirm that the Bill removes any discretion to wait until a data set has been completed or checked, let alone until the research project is completed or the work based on that research project is published? Does the Bill require disclosure to competing research groups if they simply request that the data be made available to them? Does it require disclosure before a decision about possible commercialisation has been reached—or, indeed, can be reached?
I know that some noble Lords hope that there is a Scots remedy to this. I yield to nobody in my admiration for the remedies that have been taken in Scotland for certain matters; but, unfortunately, it is a fantasy that waiting for publication is a real solution to the problem. I will come back to why. Before that, I would like to ask a few questions about the form in which data would have to be released. Clause 100 tells us that,
“the public authority must, so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use”.
At one level, that is clearly very sensible. The provisions for the release of government data are, of course, even stronger. They must be released in a form that can be freely used, reused and redistributed to anyone—subject only, at most, to the requirement to attribute and share alike.
I do not think that the present Bill demands quite as much, in that it permits controllers of data sets that have to be released to charge a fee for reuse if they are the sole owner of a copyright in the relevant database. Am I right in reading the Bill as requiring these public authorities to release data they control to competitors, subject only to the right to charge a fee? Am I right that there is nothing to prevent those who have secured release of data from reusing them for commercial and other purposes, without needing any consent from those who compiled the data?
Do the Government envisage defining a stage in a research project before which the requirements to release data would not apply? Or does the Bill ensure that a research team at a UK university must share their data with all-comers, including scientific and commercial competitors? Do the Government envisage that overseas researchers will reciprocally open their databases to scientific and commercial competitors? If this is not the picture that the Government have in mind, it would be very helpful if the Minister could say something about the stage of a research project at which data would have to be made available upon request. I do not think we can solve this problem by referring to a point of publication: most big data sets have many publications associated with them, which occur at many stages. Which of them would be decisive for triggering susceptibility to be requested for release of the data set?
Finally, I have some boring questions about costs. A requirement to make data sets available in electronic form that permits reuse does not sound onerous if one thinks about little data sets. However, a great deal of scientific research today compiles massive data sets. We are not talking about megabytes or gigabytes of information, but about terabytes and petabytes onwards. Making data sets of this size available is not done by the click of a mouse: it is expensive, time consuming and skilled. If data sets are to be reusable by others, it is likely that those who provide them will have to make metadata available. Do the Government have a view of the costs of this provision of the Bill? Have the Government identified who will bear the costs? Who is responsible for data archiving, for data integrity and for data security? On which budgets do the costs fall? What provisions do the Government have in mind against data mining that peels away anonymisation from ostensibly anomynised personal data? Do the Government think that these provisions are likely to incentivise public authorities which have such large databases to enter into partnership with private sector organisations which will hold the data—thereby eluding the provisions of this legislation? Open communication matters for science and for citizens; but mandated disclosure of reusable data in response to all and any requests, regardless of costs and time constraints, may not be the best way forward.
Lord Hodgson of Astley Abbotts
My Lords, I give my strong support to the policy thrust behind this Bill. Of course the title, the “Protection of Freedoms Bill”, is a seductive one—who could possibly object to that?—but there is meat in here that is certainly worthy of our support. There is the destruction rule for fingerprints and DNA profiles, the proper regulation of CCTV cameras, and the proposal to give coherence to powers of entry which my noble friend Lord Selsdon has pioneered for a long time, and which I myself had reason to learn about when my flat was broken into by the gas company on the grounds that the neighbour smelt gas. When no gas was found, the gas company seemed to have little responsibility for repairing the door or, indeed, apologising for what it had done.
The Bill also rolls back some of the ineffective and disproportionate aspects of the vetting and barring regime. This has deterred many people from volunteering to help our fellow citizens. The noble Baroness, Lady Royall of Blaisdon, for whom I have the greatest respect, chided my noble friend about this in her opening remarks. She painted the issue in what I can only describe as primary colours, but I will seek to persuade her that actually this is an issue which requires a more pastel and nuanced approach than she has shown so far.
If I have a concern, it is that we have not followed through the logic of some of the proposals in the Bill far enough. My noble friend has told us how it proposes a three-year retention period with a possible two-year extension for identification material taken from people arrested or charged but not convicted, and I thoroughly support that. However, perhaps I may draw my noble friend’s attention to the Elmer database. This database is maintained by the Serious and Organised Crime Agency. It receives reports about possible money laundering and other criminal activities under the Proceedings of Crime Act 2002 entitled “Suspicious Activity Reports” or SARs. It may surprise the House to know that there are now 1.5 million of our fellow citizens on the Elmer database and that this number is increasing by 200,000 a year. Almost 50 per cent of the entries are more than six years old. It is hoped—I repeat, hoped—to delete these by the end of 2011. But this gives rise to some serious civil liberty issues. People do not know that they are on the database, whether the information held about them is correct, and they have no right to find out.
When the committee of your Lordships’ House of which I am a member inquired about this of the SOCA authorities, they said that they might tell us, but they might not. Some entries are inadvertent, access to the database, at least historically, has not been well controlled, and there is no de minimis level of returns. For some years I was head of the compliance committee of a building society. We made several hundred returns every year, none of which was ever for more than about £200 or £300. So I offer to my noble friend the thought that if regulatory principles are that they should be proportionate, accountable, targeted, transparent and consistent, there should be some amendments to bring the Elmer database under much tighter control than we have had it so far.
I turn next to Part 5 covering the vetting and barring regime, and I begin by saying that I understand absolutely the repulsion—it is not too strong a word—that people feel about the abuse of children and vulnerable adults; any parent would. But there is a really important balance to be struck. I prepared for the Government a report looking into what deters people from giving time and money in volunteering in order to help the charity sector. It was called Unshackling Good Neighbours. The evidence we received from across the country was that many of our fellow citizens are put off volunteering by what they see as a lack of trust and a lack of judgment. This must ultimately damage the welfare of children and vulnerable adults. We had evidence from a doctor in the north of England. She was aged 67 and had retired from the health service. She offered to give some time to the Alzheimer’s Society to deal with patients suffering from Alzheimer’s. The society insisted that she be CRB checked because “frequent and intensive” contact, the level we have at the moment, means one visit a month. She said, “The state has an audit trail for me going back 40 years since I became a doctor. If the state doesn’t trust me, I am not going to do the work”. That was not unique; there were lots of cases like it.
Perhaps I may say to the noble Baroness, Lady Royall, with the utmost respect for her position, that the whole CRB industry has become institutionalised. If you take evidence from charities and voluntary groups, they bring their CRB teams along. Of course they are going to argue that more CRB checks are needed because that is their job. The Charity Commissioners and Ofsted ask charities whether they have carried out their CRB checks. I understand that this is important, but the CRB is a matter of law. The Charity Commissioners are concerned with charity law and Ofsted is concerned with educational standards. They might as well ask whether they ensure that teachers drive at 30 miles an hour when they come to school in the morning.
The police child protection officers ask intrusive and difficult questions of volunteers and there are commercial companies doing CRB checks who like the extension of it because it means more fees for them. Perhaps I may briefly give the House a flavour of this from a letter we had from a lady in Manchester:
“About 8 years ago I decided to get involved in a local Manchester Drama group, whose members range from 7 to 80 years old. A number of us assumed responsibility for teaching the children and preparing them for the annual pantomime and other productions. Naturally, we were CRB checked—a process I had no issue with and wholeheartedly support.
However—having been CRB approved, we were invited to a session with the local child protection officer. I came away from that meeting with a number of very serious questions as to whether I should get involved with this sort of group. The talk left me feeling I would potentially be placing myself in situations of real risk”.
There are many cases which repeat these concerns about the lack of trust and judgment. If you ask some of the other experts, they can explain where the vulnerable points are: they are outside the school gates and on the social networking sites. That is where the grooming takes place, and all too often they are outside any remit of the CRB. I hope that my noble friend will stand firm against any attempt to push back this issue, and I hope also that he may be inclined to think about whether we cannot find another place where the balance can be struck.
I should like his reassurance—I think he gave us one in his opening remarks—that the portable passport is now coming into being. Can he let the House know what the charge for this passport will be? There has been a lot of concern in the sector that there will be a substantial charge. Could he also let us know what the definition of “frequent and intensive” contact will be in the future? If it is to be in new regulations, it would be helpful for us to know this when we come to debate these clauses in Committee.
I want to leave the debate with one further thought. It is a small issue, but one that is growing in importance. In future, how are we going to ensure the accuracy of information placed on social networking websites and who will be responsible for this? This is a freedom which is increasingly going to need protecting. Two sites in particular have given rise to public anxiety: Facebook, which is well known, and a site called TripAdvisor that gives recommendations about holidays and other leisure sites. The importance of these and other social networking websites will surely continue to increase. A situation can now arise where people and their businesses can be irredeemably damaged by completely inaccurate statements that are put up on these websites and for which they can obtain no redress. Last week a case was reported on the radio of a plumber in Southampton whose business was wrecked by the fact that it was alleged that he was a paedophile, and destructive messages are published about leisure sites by rivals to try to ensure that they get a greater part of the business. People are entitled to some clear way of challenging these statements and, where appropriate, of obtaining redress. I would be interested to hear whether my noble friend has any policy developments under consideration to deal with this issue, one that is surely going to increase in importance in the future.
Baroness Dean of Thornton-le-Fylde
My Lords, I, too, welcome many of the provisions of this Bill. Social networking is one of the areas of concern. If it is on the social network, people believe it and do not believe the official authorities. A whole group of young people growing up today look at the social network and think if it is on there, it must be right. People who have bad instincts towards children are drawn to it because that is where young people go. I, too, raise the question referred to by the noble Lord, Lord Hodgson, a few moments ago.
I welcome very much Clause 58 on detention without charge. I felt that my own Government were going too far in their proposals and I would not have supported them. I support very much the change that is being proposed, and indeed, the removal of a homosexual record. What was then regarded as a criminal act is not so today, so it makes sense to remove it.
My concerns are on Part 5 and this is where I depart from some of the views of the noble Lord, Lord Hodgson. It is very easy to caricature a vetting and barring system as the nanny state gone mad and being completely wrong. We are talking about the protection of children. I agree that we need to get the balance right but much of the provisions in legislation arose out of cases where children were groomed and treated in an appalling way, which, as the noble Lord, Lord Hodgson, rightly says, is absolutely repugnant to any decent person. I feel that the balance in Part 5 has swung too much from one part to the other. We need to get some balance into the Bill. I hope that the Minister will listen and perhaps deserve that little bunch of mistletoe at the end of the Bill by getting some changes into this area.
The most popular team sport for youngsters in the UK, which is not one that I follow, is football. I have spoken to the Football Association because I know that it has a very good structure. It has just under 55,000 youth teams up and down the country covering about 1 million children. Each year, around 35,000 people are vetted to work with those youngsters. There is a welfare officer working with the Child Protection in Sport Unit and it is all properly organised. One could repeat that among a number of charities. There are the big organisations and the small ones that do not have that support, which will be affected profoundly by the Bill. The effect will be not from the adults working with them but from the youngsters taking part where parents may be concerned that their children are not being properly protected.
The Government have said that in future only the applicant will complete the form and only the applicant will see the certificate, as I would call it, of the vetting. At the moment, it goes to the employer or the registered organisation, but that will not happen in the future. One of the rationales for this is that only 5 per cent of the applications actually have some content or concern which means that you probably would not want those people working with youngsters. The Football Association says that it does not accept that figure and that it is around 15 per cent. Irrespective of whether it is 5 per cent or 15 per cent, that of itself is a case to argue that the Bill has gone too far. That does not mean that I do not believe that there need to be changes.
We have talked about social networking and we talked earlier about new technology—even looking at our own procedures in this House. I wonder whether the Minister should perhaps give some consideration to saying that, for the 95 per cent, or indeed the 85 per cent, that cause no concern at all and whose applications go through without problem, the notification of clearance could go by e-mail. At the moment it goes in the mail, but e-mail is much quicker and not as expensive. At the moment the whole problem will be loaded on to the voluntary organisations. We know what will happen. There will be a dreadful case that is all over the papers. The Daily Mail will be calling for the Minister’s head because he has not given proper protection to children. We need to find a balance to make it more efficient, so that it is not so overbearing, but protects children. That is one thing that we could have. The ones that cause concern could then go in the normal way to the organisation, whether it is an employer or a voluntary organisation.
The Government say, “Well, sometimes there are errors”. We could allow a period between an individual being told, “We are not going to clear you to work with children”, and the third party—the employer or organisation—being told. It could be a period of two weeks, a month, or whatever to allow the individual to appeal that the information is incorrect. Certainly that would bring back some kind of balance. There is also the issue of transferring the cost entirely under the present proposals from the centre to the organisations, many of which do not have the resources to do it. What will happen? At the moment, they will be able to take a judgment about not having clearance and, again, we will have not one but several public scandals.
The Bill provides—this is very welcome—the portability of the clearance. Once you are cleared, you are cleared, and that is it. Quite often volunteers work not for one organisation but several. That would be extremely helpful in improving matters. The Bill has a number of unintended consequences in this part and I look forward to discussing it as we go through the Committee stage. I hope that the Minister will deserve that little bunch of Christmas fare at the end of it. I am sure he will.
Lord Goodhart
My Lords, in recent years we have had a series of Bills that could be described properly as prevention of freedom Bills. We now have a Protection of Freedoms Bill. The Bill is rightly so named. It is an excellent Bill which I strongly support.
Some people—perhaps particularly some leaders of the Labour Party—argue that the Bill goes in the wrong direction or goes too far. Others say that it does not go far enough. I think that the Bill gets it about right. There are undoubtedly matters of detail that can be corrected but broadly it is about right. There are, of course, some simple and obvious provisions that very few people could possibly challenge—for example, Clause 108 which now allows marriages and civic partnerships to be entered into at any time of night or day, although that might meet with the objection of neighbours who did not like a wedding being conducted at midnight.
A number of people claim that parts of the Bill should go further. Examples include, among others, Part 1 on biometric data, Part 3 on powers of entry and vehicles left on land, and Part 4 on counterterrorism. I do not want at this stage to express my own views on matters where I have had little professional experience. This rules out, for example, Part 1 on biometric data. But there are two matters that I want to speak on tonight: some aspects of Chapter 1 of Part 3 on powers of entry and Part 4 dealing with counterterrorism.
Chapter 1 of Part 3 contains many provisions which give rise to Henry VIII powers—powers for the Government to alter or repeal provisions of another Act of Parliament by order rather than by a separate statute. I am interested in these provisions because I am a former chairman of the Delegated Powers Committee which deals in particular with Henry VIII powers. The 20th report of the Delegated Powers Committee dealing with this Bill found that most Henry VIII powers in Clauses 39 to 41 are acceptable. However, it said that another Henry VIII power in Clause 51 is inadequate because the first exercise of that power should be made by the affirmative procedure and not by the negative procedure.
The report on the same subject by the Constitution Committee is critical of Clause 41. However, the validity of the Henry VIII powers is more of a matter for the Delegated Powers Committee than the Constitution Committee. I believe that no modification is needed to Clause 41. What would then be left to be dealt with by way of altering the Henry VIII clause would be a minor change to Clause 51 which would cause no problem to anybody.
Much more important issues arise over Clause 58 of the Bill which deals with a temporary extension of detention in an emergency involving threats of terrorism. The general position in the Bill as is stands is that the maximum time for detention of a terrorist suspect will be 14 days and there will no longer be a power for the Home Secretary to extend the term to 28 days. There will, however, be a power for Parliament to enact one or other of two now-existing draft Bills which will make it possible to extend the period of 14 days in an emergency.
The proposal was, at an early stage, considered by the Joint Committee on the draft Detention of Terrorist Suspects (Temporary Extension) Bills, which has already been mentioned by my noble friend Lord Freeman. I was a member of that committee and I am very glad that our chairman, the noble Lord, Lord Armstrong, will be speaking shortly on the same subject. It became apparent to us in the committee that although very quick action could be taken even when Parliament was in recess, there was a severe problem if there was no Parliament. That would happen from the time when Parliament had been dissolved until a new one had been elected and its Members had taken office. While it is very unlikely that terrorist activities will be launched at such a time, it is obviously not impossible.
Our committee therefore recommended the introduction of what is now basically Clause 58 to make it possible to deal with this problem. Clause 58 has been fiercely attacked by Liberty and less fiercely by Justice, of which I am a former chair. Liberty said:
“Under Clause 58, 28-day pre-charge could potentially be activated by the Home Secretary (with no need for parliamentary approval) whenever she considered it operationally convenient”.
That is absolutely untrue. Justice said:
“We believe extending the maximum period of pre-charge detention in terrorism cases is unlikely ever to be an appropriate response to a public emergency”.
That is true enough as it is unlikely that danger will arise during the short period that occurs only immediately before and immediately after a general election. However, the risk should not be ignored.
I finish with a broad picture of what I think should be done. This is a Bill that almost all of us can support very largely. Many of us would like, in some respects, to go further but our aim, I believe, must be to produce a good result, not necessarily an ideal one. Therefore we need to be careful about the amendments we consider when we are dealing again with the Bill.
Lord Dear
My Lords, I, too, join the growing chorus of support for the Bill. I support its broad thrust. I welcome it and think it is timely. I will go through the list very quickly because noble Lords have already made the points. So far as the regulation of CCTV is concerned, of course I applaud that. As to the destruction, retention and use of fingerprints and DNA samples and so on, the existing position is totally untenable and the proposals in the Bill will bring us into line with what is already happening in Scotland and will broadly support the judgment put forward by the European Court of Human Rights in the case of S and Marper v United Kingdom in 2008.
So far as local authorities are concerned and the way in which some of them have used the Regulation of Investigatory Powers Act to deal with some of their problems, if ever there was a case of sledgehammers being deployed against walnuts, I have not seen a better one. That has to be curbed. The Bill seeks to do so and I applaud it. I also support, as other Members of your Lordships’ House have, Chapter 4 of Part 5, which seeks to disregard some convictions for some homosexual acts in the past.
The issue of terrorism is closer to my own heart for professional reasons. I agree that Section 44 of the Terrorism Act 2000, providing for stop and search without reasonable suspicion, is also untenable—a word which I have used already. The move towards using Section 43 instead, where reasonable suspicion is required, is to be applauded. In particular I very firmly support the proposed reduction from 28 days to 14 days in cases of pre-charge detention of suspected terrorists. I was the noble Lord who successfully proposed the amendment to stay at 28 days in the face of a determined attempt a couple of years ago to extend the period to 42 days, so I am speaking with a particular interest at heart. I note, of course, the saving provision for 28 days in emergency circumstances. I think that that is a very sensible move.
I want to draw attention to one freedom that is not covered in the Bill: the freedom of speech, one of the most fundamental of all the freedoms that we cherish in this country, and have cherished for a very long time. I say immediately that I have no intention whatever of seeking to amend the Bill to bring something in to cover freedom of speech, but I ask noble Lords to bear with me for a very short time while I introduce the subject very briefly and give the reasons why.
In common with many other Members of your Lordships’ House and a significant number of Members of the other place, I support the removal of the word insulting from Section 5 of the Public Order Act 1986. The term,
“threatening, abusive or insulting words or behaviour”,
has been included in legislation from as far back as the Public Order Act 1936, an Act which has been steadily amended as society has become more complex. Under Section 5 of the current Act, “insulting” stands at the very bottom rung of the ladder of descending seriousness. The ladder begins at the top with Section 4 of the 1986 Act, which criminalises intentional harassment and other criminal acts, going down through Section 4A into Section 5, where no intent is required for the offence to have been committed.
I have of course oversimplified that, but it gives you a picture of descending a ladder of criminality until one reaches the very bottom rung, which is insulting behaviour. “Insulting” is obviously the least serious of the range of behaviour encompassed by the current legislation. It is now also the subject of a good deal of debate, not least because on a significant number of occasions the enforcement of the legislation, so far as it applies to insulting, is seen by many to be an impediment to the proper exercise of free speech, whether or not one supports the views expressed by some of the defendants in some of the more contentious cases that have focused attention on this issue.
In normal circumstances, I would table an amendment in Committee to seek to strike out the word insulting from Section 5 of the current Act. However, on 13 October the Government announced a consultation exercise to examine police powers for public order under three heads, one of which is to examine this very issue—the possible removal of the word insulting from Section 5. That consultation period will run until 13 January 2012. For obvious reasons it would not be sensible or proper to press for an amendment while the consultation procedure is in place. I simply ask the Minister at this stage—a stage when we are examining and discussing many other fundamental freedoms, issues such as privacy, due process, freedom from arbitrary arrest and many others—to note my remarks, to recognise the fundamental importance of freedom of speech in this country, and perhaps to endorse my remarks in welcoming the conclusion of the consultation procedure in January next year, when we might have an early opportunity to return to this issue and to debate it fully, a debate which otherwise should and, I believe, would have been featured in this Bill today. As I said, however, the Bill as it stands has my broad support and I welcome it.
Baroness Walmsley
My Lords, I, too, give a general welcome to this important Bill and intend to focus my remarks on Part 5. Like the noble Baroness, Lady Dean of Thornton-Le-Fylde, I feel that a little nuancing may be in order.
I welcome the Government’s intention to streamline the vetting and barring system and to right the wrong about legal gay sex. In particular, I welcome the portable CRB checks, for which there is clearly a need. I have heard many stories of people working in a number of schools, sports organisations or cadet forces who could almost paper a wall with their CRB reports. However, there is a danger of a two-tier system, one free and the other paid for. When the person shows his portable report to an employer, that employer will be able to check online that it is valid and up to date—so far, so good. But this database requires regular updating. Employers can check both the CRB report and whether the person is barred on two separate systems, for each of which they will have to pay a subscription. There will also be a cost to individuals for this portability. I fear that, if the portable check has a cost and the individual check is free, people may choose the latter, thereby frustrating the Government's intention to streamline the system.
We have been approached by a number of highly respected groups that have concerns about the changes to the vetting and barring system. The Sport and Recreation Alliance, which represents 320 governing bodies of sports that work with hundreds of thousands of young people and volunteers, believes that the proposed measures could undermine their effective and efficient centralised systems and transfer significant burdens to volunteers. The Association of Colleges points out that colleges employ 245,000 staff, of which 79,000 are non-teaching. More than 860,000 16 to 18 year-olds study at colleges, whereas only 434,000 of this age group study in schools, yet colleges are to be put under a different regime from schools. When the participation age is raised to 17 and then 18, the number at colleges will probably rise even further. Sixty-three thousand 14 to 16 year-olds currently attend a college at least one day per week, and this number is likely to rise as well, following the Wolf report. Colleges feel that all young people should be given the same protection wherever they study, and that means looking again at some of the proposals as the Bill goes through your Lordships' House.
The problem is that the Bill proposes reducing the amount of regulated activity, which would have the effect of reducing the number of people covered by the vetting and barring regime—all well and good. While this may be desirable for some groups, it must be done very carefully to avoid letting through the net people who would seek to harm children. These people are often very clever and plausible, so we need a system that is cleverer. The key to this is information, so that informed decisions can be made. However, as the noble Baroness, Lady Dean, said, the disclosure will no longer be sent directly to the organisation but to the person being screened, who then has to send it on.
There are a number of problems with this that have been raised with us by a number of children's organisations. I understand that the Government have decided to send the reports to the individual because there have, in the past, been some cases of wrong information going to the employer, which is highly undesirable. However, in 2010, only 0.06 per cent of certificates issued were found to have errors, so it would seem that the proposal is hugely disproportionate. Surely this problem could be catered for by sending it to the individual and giving them a period to correct anything that is wrong before sending it directly to the employer. To prevent employers getting timely information because of such a small percentage of errors is over the top.
Organisations raise a number of other problems besides cost. If the individual does not send in the report, the organisation has to spend time nagging them for it. They may want it passed on to a local volunteer, which would have an effect on the relationship between the two and put too much responsibility on that volunteer. The person would have to be suspended while the report was awaited, giving rise to sometimes quite unnecessary and unwarranted suspicion. As the noble Baroness, Lady Dean, said, the FA says that only 15 per cent of its disclosures have what is called “content”—in other words, material that needs looking at, yet that organisation may have to waste its time chasing up the other 85 per cent quite unnecessarily. So it and all the other 320 sports organisations in the alliance feel that Clause 79 as it stands makes their job of protecting young people more difficult and creates opportunities for determined predators to manipulate and frustrate the safeguarding process.
Another issue that has been raised is the extension of non-regulated activity to include work that has “day to day” supervision. The NSPCC, the Children’s Society, Children England, the Children’s Commissioner and others have raised this issue. First of all, we need to get the right definition of “supervised”—that is vital—but we should also bear in mind that even closely supervised people have the opportunity to develop a trusting relationship with young people that could be exploited at other times and in other places.
Another issue is that people will be placed on the barring list only if the ISA, or its successor, has reason to believe that the person is or might in the future want to work with children or vulnerable adults—the noble Baroness, Lady Royall, referred to that. A survey has shown that nearly 97 per cent of the public believe that if a person has been convicted of an offence that is sufficient to bar them they should not be allowed anywhere near children in any capacity—here we are not talking about reputable doctors. It seems unnecessary for the ISA to have to spend its valuable time and expertise considering whether a person might or might not, at some time in the future, want to work in a regulated role.
This brings us to the information on the CRB certificate. Under the Government’s proposals, if employers choose to perform a CRB check on someone working with children outside of regulated activity, they will not be able to see whether that person is barred. Sir Roger Singleton, chair of the ISA, has estimated that one in five people who are barred by it have never been near the police, so their CRB disclosure would not show this. For this reason, I welcome the proposed merger of the ISA and the CRB.
None of us wants children to believe that all adults pose a threat to them—far from it. We all want a simple, no-fuss system that weeds out the bad guys without deterring the good guys who we want to encourage to work with our young people. We will work with the Minister as the Bill goes through this House in order to produce such a system that does just that: get the balance right. Currently, as I said, I believe that a little nuancing is required.
Lord Selsdon
My Lords, I suppose that freedom and privacy are two of the most important things in my life. My interest in this matter goes back many years to the banking world, when we had the phrases “duty of care” to your customer and “know thy customer”. I found as time went by that nobody knew anybody: you did not know the gasman; you did not know the postman. Strangers started to appear on the doorstep. In the banking world, we were concerned particularly to protect our clients from all sorts of invasions. This started for me and my colleagues along the lines of, “We had better introduce a Bill”, so, way back in the 1970s, we drafted the protection of privacy Bill, because it was about privacy that we were concerned. Gradually, we found that there were more and more opportunities for government or outside bodies to enter people’s property without permission and do all sorts of strange things, whether or not it was the gasman. This led to my drafting, with considerable help, the Powers of Entry etc. Bill.
This was done initially with the help of a professor from Lincoln University, Richard Stone, who produced the authoritative book, The Law of Entry, Search and Seizure. I began by asking Ministers questions—I think there were well over 100, or maybe 200—as to what the powers of entry were. They did not know the answer, and the standard response was, “The information is not centrally available”. They did not say that the cost of getting it was too much. So I drew people’s attention to the book and put it in the Library, and certain Ministers began to reply. Then, rather to my surprise, the Labour Party and Government became interested and were extraordinarily helpful. Gordon Brown made an announcement at Downing Street that we must do something to control the abilities of people to enter people’s homes without their permission. The Bill, which, as I said, was called the Powers of Entry etc. Bill, lasted about three years. There were three editions, and the final one passed the House with the great help of the Labour Government in March last year.
I have learnt in this place that you never get a Private Member’s Bill through unless you find someone who picks it up in the Commons after winning a ballot. You have to drip-feed the right people in the right way, and watch the stalactites and stalagmites grow. It was therefore a great pleasure to me when we finally got this through with the help of the noble Lord, Lord West, despite the objections of his officials at the Home Office for quite a period of time. We had a Public Bill Committee, which people from all parts of the House served on, and I was lucky enough in the end to get the Home Office to join in. I would mention the name of the man in the Home Office—he was brilliant. Together, we found our starting point was 150, then 250, then 300 pieces of primary or secondary legislation. Then the Home Office, working often through the night, arrived at somewhere around 2,500. Of course they change.
However, who can go into whose house? We thought that it might be right to say that, first, they should knock on the door and say who they are, and then perhaps they should prove who they are. They should probably not do it in the middle of the night and they should probably not do it on a Sunday, they should wear good clothes, and they should possibly have something to say, such as, “I am here for this reason”. Your Lordships will have seen in the press from time to time many occasions when, because a postcode was wrong or the wrong button was pressed, someone beat down the door of someone else’s house, took something away or caused problems. What pleased me so much about this was that, gradually, people became interested. I knew the Government would not necessarily take it up, so I was so grateful that the Labour Government lost the election, because it gave me a chance to put a bit of pressure on the Conservative Government, one of whose wise men rang me in the middle of the night when I was abroad and said, “Your Bill is going to be adopted when we win the election”. I said that I would wait and see whether that happened or not.
Anyway, I did not hear much more. Then, suddenly, the Protection of Freedoms Bill emerged and the powers of entry were within it, bearing some resemblance to what I and my team had done. However, the government system had failed to recognise that we did not leave it by pushing a Bill for someone else to take up and do all the work on. We had communicated. I had written to every local authority in the land and asked for their views. I had written to every bishop and asked him to get in touch with the parish councils. We had written to every one of the bodies that had powers of entry asking for their advice and guidance, and I had put out a website that went right the way around different parts of the world. More than that, we had drafted a petition and were just looking for the 100,000 signatures in order to present a petition at the Box. This was all with the help of the Public Bill Office and the people in the House of Lords.
I am now extremely grateful as I stand opposite the noble Baroness, Lady Royall, and I thank her so much for the help of her Government and ask whether she will help me to persuade this Government to do things in the right way. They started off correctly, but I am glad they put the powers of entry section into another box, as it was pretty useless. It did not even list all the powers, because they change from day to day, but said they would introduce a code of conduct.
I wanted to know what that code of conduct did, because the Bill that we had already had said that you must not go into someone else’s property, office or place of work without permission or a court order. Now it is the court order that has not yet appeared, because it is relatively easy for anyone to obtain one at any time. The noble and learned Lord, Lord Scott of Foscote, was on our team. As your noble Lordships will know, he hunts quite regularly and said that he could even issue an order from the back of a horse if necessary. The issuing of orders is not a problem. We took out one particular area within the Bill that was quite important and that separated the powers of entry from everything else—a saving. It said:
“Nothing in this Act shall apply to the issue or execution of warrants in connection with indictable offences, including terrorist offences”.
So it was really about only commercial or other searches. I had some sympathy for the trading standards officers who took me back to the original Truck Acts, which go back over a long, long period. They had a point when they said that when people were mistrading or behaving badly they had to have the right to go in pretty quickly before the goods had gone.
I now ask the Government whether they would be kind enough to help me. They have listed the powers of entry in the Bill, but they have said they will produce a code of conduct. We do not really need a code of conduct, we need the permission in effect to require that powers are granted for the issue of rights of entry, that you should list them all, and, more than that, that you have the schedule that is necessary here.
The powers of entry all change regularly, and this is where we come to that strange thing, Henry VIII clauses, which I am not terrible well briefed on. The Public Bill Office asked me, perfectly simply, “What do you want to do?”. I said that I wanted to stop the Government doing the wrong things in the wrong way at the wrong time. This came to the fact that maybe the Government should not be allowed to introduce any new powers of entry without primary legislation but should be allowed to remove any unnecessary powers of entry on their own.
I sit down with a simple point; when we come to Committee, I will try to introduce that part of the Bill that we did together to save the Government time and money. If they are going to follow the proposal that they are laying down here, it will be two to three years before they manage to get everything sorted out. In the mean time, my great friend and colleague Professor Richard Stone has got the Oxford University Press to agree to issue a new edition of The Law of Entry, Search and Seizure, which will come out quickly. It would be a pity if that came out before the Government had got their act together. I am going to put pressure on my noble friend on the Front Bench when the Bill comes to Committee and ask for his support. In the mean time, I am very grateful to the party opposite for everything they did to help.
Lord Bradshaw
My Lords, I am going to deal with something very down to earth when contrasted with the noble Lord, Lord Selsdon. It concerns Chapter 2 on the clamping and towing away of vehicles. We are concerned that what are now rogue clampers will become rogue ticketers. It was argued in another place that the existing consumer law—the Fraud Act and the Theft Act—provides suitable protection for cities. I do not share that view and neither does Citizens Advice, because resorting to law is extremely long-winded and expensive. We have to deal with these issues effectively during the passage of this Bill.
First, we have to be certain that there is an independent appeals body that is funded by the industry, and that its existence is made plain both on the notices and the parking tickets that are received by people. We should insist that those who have the power to issue tickets should be members of an accredited trade association. I believe there is only one at the moment, but we have to take account of the fact that there will be more than one. The appeals body to which I have referred should be able to decide on a reasonable level of charging by reference to the charges imposed by local authorities or several adjacent car parks. It should be possible, even though charges will vary in many places.
The appeals body should also take account of the fact that the car park is properly lit and that, if people are to be penalised for parking over the dividing lines, those lines are clearly marked on the ground—not a small swab of paint in the corner, but properly marked. All that can be covered in regulations. The most important thing is that we are clear that only properly accredited people can access the DVLA database. That is the key. I am certain that, now, a lot of absolutely awful people are getting access to it.
I shall delay your Lordships for one or two more moments. I was a member of a police authority for a long time, and when I was, we had many cases of people accessing databases on an irregular basis. We have to be certain that only bona fide parking operators have that access.
Lord Armstrong of Ilminster
My Lords, this is a veritable bran-tub of a Bill, as is apparent from the Long Title. It might be more charitably described as a Christmas pie full of plums. I propose, like little Jack Horner, to put in my thumb and pull out a plum—like my noble friend Lady O'Neill, only one plum for consideration at this stage. That plum is Part 4, which deals with counterterrorism powers.
There is clearly around the House a general welcome for Clause 57, which states unambiguously that the maximum period of detention without charge for a terrorist suspect shall be 14 days. That is already a long period to hold anyone in detention without charging him or her—much longer than would be acceptable for any other criminal offence.
However, there remains the persistent fear that there may well be circumstances in which there are compelling reasons for detaining someone suspected of having committed a terrorist offence without charge for longer than 14 days. The need to do so has not arisen during the past four or five years, but in this highly unpredictable area, we cannot exclude the possibility of an emergency in which it might be necessary to be able to do so—in which, indeed, the consequences of not being able to do so might be not just unacceptably serious, but literally fatal: some people might die who would otherwise not have died.
The Government have taken the view that an extension of detention without charge is so serious a restraint of freedom and so grave a breach of the rights of any citizen that it should be effected only by the introduction of emergency primary legislation when the need actually presents itself. They therefore prepared draft legislation, which could be introduced, if and when the need arose, to extend the period of detention of a terrorist suspect without charge for not more than 14 days, up to a maximum of 28 days.
A Joint Committee of Members of your Lordships' House and of the other place, of which I had the privilege of being the chairman, and the pleasure of having the noble Lords, Lord Freeman and Lord Goodhart, as fellow members, was set up to give the draft legislation the sort of pre-legislative scrutiny for which there would not be time if the legislation had to be introduced and passed as quickly as possible in an emergency.
My Lords, we understood and respected the Government's desire to make sure that a power to extend detention without charge should be exercised as rarely as possible, and that, ideally, it should be introduced only subject to the degree of parliamentary scrutiny and discussion which is appropriate to primary legislation. However, we identified certain problems about what was proposed.
First, it might be difficult to pass such legislation with the necessary urgency when Parliament was in recess, and it would be impossible to introduce it at all during the period between the dissolution of one Parliament and the first Queen's Speech in the next. Secondly, it might be very difficult for the Secretary of State to explain and justify to Parliament and for Members of both Houses of Parliament to be properly satisfied about the reasons why the legislation was required without incurring the risk of endangering the success of an ongoing counterterrorist operation or of prejudicing the possibility of a fair trial for someone charged with a terrorist offence.
We feared that those difficulties might be so great that a Secretary of State might be obliged to conclude that it was preferable to run the risk of not extending the period of detention without charge rather than to introduce legislation to provide the necessary powers, whatever the potential consequences of that choice might be. We therefore concluded that the Government's draft Bills did not offer a satisfactory solution to the problem, and recommended that this Bill should create a power for the Secretary of State to make an executive order at any time—not just during a period when one Parliament had been dissolved and the new Parliament had not yet started work—if there was real need to do so.
We recommended that the purpose of such an executive order should be to extend the maximum period for pre-charge detention to 28 days in exceptional circumstances, and that it should expire in three months. We made recommendations to suggest in detail: how to ensure that such an order would be made only in truly exceptional circumstances; how the exercise of the power should be made subject to mandatory review by the independent reviewer of terrorism legislation; how it should be subject to rigorous safeguards and to judicial review; and how it could be made subject, eventually, to parliamentary scrutiny.
The Government have, I am glad to say, accepted many of the Joint Committee's other recommendations, and will introduce amendments to that effect, but they have accepted the committee's main recommendation only in part. Clause 58 would provide the Secretary of State with power to make a temporary extension order when Parliament is dissolved or when Parliament has met after a dissolution but the first Queen's Speech has not taken place, but not at any other time.
I appreciate and respect the Government's wish to ensure that extensions of detention without charge beyond 14 days are as rare as possible. The committee asked the Secretary of State, when she came to give evidence to us, about the difficulties of presenting emergency legislation, to which I have already referred. We admired the confidence with which she assured us that she thought that she would be able to find a way to steer through or around those difficulties in presenting emergency legislation if necessary.
I remain of the view, however, that when the time came, she or a successor Secretary of State might find those difficulties to be insurmountable. She might, despite any advice to the contrary from the police or the Director of Public Prosecutions, decide that it was ineluctably necessary to take the risk of not introducing emergency legislation. No Secretary of State should be forced into a position where such a decision is forced on her.
If the Bill receives a Second Reading today, I hope at a later stage to put forward for your Lordships’ consideration an amendment to Clause 58 that would allow the Secretary of State to introduce emergency legislation for an extension of detention without charge when Parliament is sitting if she thinks that she can safely and properly do so, but would give her the option of making an executive order under Clause 58 if she thinks, even when Parliament is sitting, that the introduction of primary legislation would in the then prevailing circumstances be too difficult.
I hope for her sake and for all our sakes that she is never called upon to make that choice, but better safe than sorry.
Baroness Doocey
My Lords, I focus my remarks on aspects of the Bill relating to policing matters. I declare an interest as a member of the Metropolitan Police Authority.
I begin by expressing concern about the proposals in the Bill regarding the regulation of biometric data, particularly the DNA database. DNA profiling is critical to the successful investigation of crime, particularly in cases of serious violence and sexually motivated crime where the perpetrator is a stranger to the victim. At the same time, the blanket and indiscriminate retention of DNA profiles is wrong, as the recent judgment in the European Court of Human Rights made clear.
There are some very welcome provisions in this Bill: the intention to put the National DNA Database and the National DNA Database strategy board on a statutory footing; the destruction of DNA samples within six months; the assurance that the DNA profiles of those found not guilty of an offence will in future not be loaded on to the database; and the deletion of existing DNA profiles of those who have been found not guilty of an offence.
However, there remain some concerns and areas that I believe could be improved. I have a particular concern regarding the complexity of the new retention regime for biometric data. We need a regulatory system that is robust and which enjoys public confidence, but we do not need one that is excessively burdensome. Deciding how long to retain DNA profiles is a complex business. The retention periods stated in the Bill are not fixed, but are subject to complex decision-making—for example, the provision for the biometrics commissioner to extend the retention period by two years in certain circumstances. While not every profile will need to be assessed, it is unlikely that it will be possible to automate the process of deletion as a result of this provision. The administrative burden on the Metropolitan Police service—and indeed other police services—is likely to be significant. The Metropolitan Police estimates the initial cost of implementing the Bill at £2.5 million plus ongoing costs of £500,000.
There is also an operational risk inherent in the complexity of the retention regime. No system is perfect and, if the deletion process is out of sync and is not carried out at the appropriate time, there is a real risk of “illegal” matches that could connect someone with a serious crime such as rape but then could not be used. The police must not be put in the invidious position of identifying a rapist or murderer but being unable to use the DNA match in evidence.
A further concern in this section is about the regulation of the counterterrorism DNA database. Given the proposals within the Bill to strengthen the oversight and governance of the National DNA Database, for the sake of consistency, similar moves should be made in respect of all police databases relating to DNA and other biometric materials, including the counterterrorism DNA database.
We should also consider Schedule 7 to the Terrorism Act 2000 and how this Bill relates to it. At present, the police may obtain DNA profile data and fingerprints from people stopped under Schedule 7. However, there is a need for clarity regarding the treatment of these data. The proportion of people stopped under Schedule 7 who have their DNA and fingerprints taken is low, but Schedule 7 gives the police very considerable power. An examining officer may exercise his powers,
“whether or not he has grounds for suspecting”.
There is consequently a need for clarity and transparency regarding where this biometric data information is then stored, and if it is subject to the same safeguards governing DNA taken from an individual on arrest.
I will refer briefly to the question of closed circuit television and automatic number plate recognition, included in Part 2 of the Bill. The regulatory framework proposed in the Bill is a positive step. However, the code should specifically address the covert use of both automatic number plate recognition and CCTV. The Minister in his opening remarks referred to Project Champion, which is a very good example of how ill thought through proposals and a lack of engagement and consultation can undermine confidence in policing. We also need clarity as to whether the responsibilities of the proposed Surveillance Camera Commissioner could be undertaken by the existing Chief Surveillance Commissioner. When we move to Committee stage, I shall be seeking to return to some of these issues.
Lord Lucas
My Lords, I like this Bill. There is a lot of it that I shall take a deep interest in as it goes through. I am sure my noble friend is well aware of my interest in the Regulation of Investigatory Powers Act, freedom of information and vehicles left on land but all those have been very well covered by others. I should make a quick declaration: a proportion of my DNA is on the national database—probably enough to identify me—and there is a clause in the freedom of information sections which will resolve various disputes I have with various universities in my favour. So I shall be careful when we come to that.
I want to concentrate on the section on biometrics in schools. This section is a daffy overreaction. Biometric systems are very widely used in schools. They have great benefits and I am not aware of any instance of serious problems with them. They improve safety. They mean that you know where the kids are, and in some schools that is very important. They improve privacy, because you can no longer tell who is claiming free school meals, and that generally results in a large uptake of free school meals. They greatly improve efficiency, because you no longer have to divert teachers to supervisory jobs which are done quickly and efficiently. Kids are used to it, because a lot of the systems that they are familiar with incorporate biometric systems.
The Explanatory Memorandum talks about risks as if they have been established, but I have not seen anybody create a scenario where there is a believable, practical risk to the kids in any way at all. We are dealing here not with something that is available nationally but with a closed system, a community that is using this data within itself—which we do here. All of us are subject to a highly sophisticated biometric scanning device every day: they are called doorkeepers. They do not scare us, and they are not a danger to us. The fact that they recognise us without difficulty is not something that gives rise to problems.
Within a closed community, the fears that people have on the wider scale do not apply. It is as if we put exclusion zones around hospitals that were using nuclear medicine, in case something exploded. It is just not real. It is an association of words which has been got up by the Daily Mail, of course—that lover of freedom, that respecter of privacy, that hater of intrusion—because it made a good story and it scared people. I am very sorry that both our beloved parties took it seriously and have stuck something in the coalition agreement which I suspect to some extent means that we have to keep it in the Bill. But I very much hope that we will be able to get some amendments through which will avoid or at least reduce the waste of resources which will result from the Bill as it is at the moment, and the increase in the incidents of bullying which will result if we cannot use this system consistently, particularly where free school meals are concerned. It gives me some pleasure that the Daily Mail, that scourge of government waste, is setting out to increase it, but I hope to save them from their own excesses.
Lord Harris of Haringey
My Lords, I declare an interest as a member of the Metropolitan Police Authority. I fear I may be spoiling the consensus that seems to have emerged as to what a wonderful Bill this is. This is a very grandiosely entitled Bill: “Protection of Freedoms”, no less. I am sure that when the title was chosen the Deputy Prime Minister had visions that, like the authors of the Magna Carta, seven centuries on, his creature would still be seen as a cornerstone of British liberties.
Frankly, he can dream on. This Bill is a mish-mash of ill-sorted provisions, a mish-mash without any overarching or underpinning philosophy and, worst of all, a mish-mash that will bring about unintended and damaging consequences. Balancing the civil liberties of the individual against the security of the state and the protection of the lives and well-being of other individuals is never an easy task and I wish that I could be confident that that balance has been appropriately struck in this Bill. Let us take, for example, Part 5, which makes major changes to the Safeguarding Vulnerable Groups Act. The noble Baroness, Lady Walmsley, who is not in her place, will remember the time spent in this House trying to ensure that children and vulnerable adults were properly protected against those who might harm them.
When we hear from organisations, such as Fair Play for Children, that this Bill introduces,
“elements of serious risk to children”,
we need to consider the points with very great care. The Government say that the arrangements under the 2006 Act were too complicated and onerous for those who had to implement them. Yet the people who will have to implement this Bill say that its provisions do not reduce or simplify the current system and that it runs the risk of sowing considerable confusion and unnecessary complexity.
There is no evidential basis for these changes. There is to be no pilot and what is being done throws away the broad cross-party consensus on which the previous legislation was based. A major concern lies in the proposed definition of what constitutes supervision in respect of affected activities. This remains worryingly vague. One suggestion is that the definition of supervision should be “line of sight”. This is so vague as to be frankly laughable and out of touch with daily realities. If the activity stays in one or perhaps two rooms and there are two staff or supervisors to monitor all volunteers, perhaps that would be possible. But in a multi-feature environment where there is outdoor activity, and in many other situations, it will be next to impossible for many organisations to provide that level of supervision. It will result in increased costs and/or a restricted number of activities, and, no doubt, fewer volunteers involved and fewer children benefiting.
In any event, supervision misses the point. The supervised activities of a volunteer are one thing but it is precisely during those activities that the trust of the child with that individual is created. It is that trust that makes possible unsupervised contact and the risks that that brings with that trust being exploited and betrayed. Of course, the risk of such exploitation and betrayal taking place during supervised activities can be reduced by good supervision. But what of the contact outside the supervised activity? The child now trusts that adult because they have encountered them in the supervised activity. But that trust is where the potential for abuse is created outside that secure environment.
That is an example of where the balance is being struck wrongly. It is based on the false belief that the bureaucracy involved is stifling volunteering. Fair Play for Children surveyed its member groups and found that more than half believe that the existing vetting arrangements have improved their overall practice. In only one instance in 200 did a group report that the arrangements had made it more difficult to recruit volunteers. Most parents will say that when they hand over their children they want the reassurance that the adults who their children will encounter have been properly vetted. Do the Government really want to put the rights of the potential paedophile above those of the child? That is just one part of an ill-thought-out Bill.
Part 4 reduces the maximum period of pre-charge detention for terrorist suspects from 28 to 14 days. The periods of detention longer than 14 days have been used extremely sparingly and are subject to judicial approval, which has not always been given. The Government, moreover, acknowledge that sometimes a longer period—up to 28 days—may be necessary, presumably because of the nature and complexity of some counterterrorism investigations.
If circumstances require it, it is proposed that the Home Secretary comes to Parliament to introduce emergency legislation to reinstate the longer detention power. That has to be nonsense. It means that during—I repeat, during—a terrorism investigation, the police and security services may have to ask Parliament to be recalled to debate an issue that it cannot discuss without prejudicing a future trial. The remarks made by the noble Lord, Lord Armstrong, are extremely pertinent on this point. Ministers recognise that 28 days may be necessary to investigate or avert a serious terrorist threat, but none the less intend to remove the power, even though there is no evidence that the power has ever been misused.
Part 2 adds to police bureaucracy, which is another example of extra expenditure being incurred as a result of pressure from the Daily Mail. It will make it more difficult for the police and local authorities to use CCTV to prevent and detect crime. This no doubt reflects concerns about a surveillance society, although when I was a local government leader my experience was that communities always—I repeat, always—welcomed the introduction of new CCTV schemes. If that concern about a surveillance society was so important, why are there no restrictions on the use of private CCTV cameras? I do not want to labour the point, but this oh-so-cleverly-worked-out Bill makes it more difficult and more expensive for our already overstretched police service to prevent crime but does nothing to restrict the proliferation of privatised surveillance.
Finally, Part 1 restricts the retention of DNA samples and profiles taken during a criminal investigation. This will make it harder, not easier, for the police to catch and convict dangerous criminals. The Home Office’s own research produced last year contradicts what this Bill will do. It showed that, each year, 23,000 people who will be taken off the database under these proposals will go on to commit further offences. Of these, 6,000 will commit serious crimes, including rape and murder.
Whose civil liberties are we protecting here? It will certainly not be those of anyone like Sally Anne Bowman who was 18 when she was murdered close to her home in south London in 2005. The police investigation initially drew a blank. But a year later, Mark Dixie, a pub chef, was arrested following a brawl in the pub where he worked. No further action was taken for that pub brawl but his DNA was taken and subsequently loaded on the database. It produced a match to the DNA evidence retrieved from the murder victim and within five hours he was under arrest. He was subsequently charged, convicted and sentenced to life imprisonment. So what are we doing removing the ability to protect people like Sally Anne Bowman? There are plenty of other such examples.
This Bill repeatedly gets the balance wrong. Of course, we should protect freedom. But why is it that the only freedoms that this Bill seems to care about are the freedoms of the would-be terrorist, the manipulative paedophile and the serial rapist?
Lord Addington
My Lords, following the noble Lord, Lord Harris, is reassuring because I feel that we have had agreement breaking out all over the place. The noble Lord says that the word “protection” is bad in the Title of a Bill. In my opinion, the word “prevention” is equally bad. Both words have been open to abuse and hyperbole over the years.
However, I wish to talk about Part 5 on which we have limited agreement. As we have already heard, this being a late-night debate, two people who were mentioned are not in their places. We have heard that sporting bodies are a little concerned about the changes in CRB checks and assessments. To sum up, primarily, Clause 79 suggests that the centralised checking that has taken place, which sporting bodies quite like and have got used to, will not be done electronically any more. The RFU is very concerned about that.
As regards freedom and protection, people are using arguments against these incredibly important principles, such as, “This way we can do it and we will have something which is easy to use”. In addition, if you are dealing with a small amateur club environment, personal relationships are incredibly important. Indeed, small amateur clubs die frequently because they break down. If testing comes to you, it will be easier to implement. If you have to provide the testing yourself, for how long can you stall it? I do not know. How long have we stalled handing over anything? Things get lost in the post and do not arrive and that will make things difficult for those who have to take an opinion.
The Government do not need to be very worried about it because there have been hints in another place; my honourable friend Lynne Featherstone said that they are looking at it. Perhaps in response, my noble friend would explain that thinking to the House. This is a practical point relating to large amateur groups which deliver much that is good in our society. How will we deal with it? How can we ensure that protections are in place?
The second point in the same vein is provided in Clause 64, but I think that sporting bodies should consider Clauses 65 and 66 as well. They relate to children and vulnerable adults. In regard to those last two clauses, we must remember that vulnerable adults get involved in sports, and the inclusion of people with learning disabilities in the Olympic movement provides a clear guide to that. The noble Lord, Lord Harris, suggested that people in secondary coaching roles might not be checked.
I turn to my own sport, rugby. It is a technical sport that requires special movements. People will be placed in positions of control, trust and authority. If you are a forwards coach, and your head coach is someone who is predominantly a back, you will require people to engage in very technical activities, involving moving your body and other people’s bodies around a rugby pitch, accompanied by bumps, thumps and groans. Such coaches will be in a position of authority and power and sometimes the junior person is not checked but will be in charge of a session and will control most of it. Other sports, such a cricket, will have similar arrangements. However, I will not talk further about cricket as my noble friend Lady Heyhoe Flint is in her place. All sports have different technicalities. I suggest that such people in incredibly important and controlling positions should be removed. Maybe we should look at that again.
I do not think these matters should wreck the Bill, but sporting bodies would appreciate some changes to make them work better and to make them cheaper and less bureaucratic. I look forward to hearing from my noble friend how such matters can be put into the Bill. I do not think they are deal breakers, but they would help people who take on the kind of work which sums up the idea of a big society perfectly.
Baroness Berridge
My Lords, I believe that there is an irony in the Title of the Bill. The Government are introducing a piece of legislation to protect freedoms which, to a significant extent, have been infringed by their actions. Like many unscientific people, I marvel at the advances in DNA and its role in crime detection, but I am pleased that many of the controversies surrounding the DNA database are dealt with by this legislation. I wish to speak briefly to the principles of Part 1 of the Bill, the nature of DNA material and the impact on communities.
Deeply embedded, not only in our constitution but in the conscience of citizens, is the principle that you are innocent until you are proven guilty. The corollary of this presumption is that citizens can go about their daily lives free from the unwarranted intrusion of the state or, as the European Convention on Human Rights and Fundamental Freedoms expresses it positively under Article 8, the right to respect for their “private and family life”.
At a time when the European Court of Human Rights has come in for quite a drumming, it is sobering to reflect that England and Wales needed to be told by the court that the blanket and indiscriminate retention of genetic material indefinitely of innocent people is a breach of Article 8. I am embarrassed that an 11 year- old British child was one of the applicants in the case of S and Marper v United Kingdom. How did the country of ancient liberties and the Magna Carta come to this?
I welcome Part 1 of the Bill, which at long last puts the national DNA database on a statutory footing. Further, the introduction of a nationwide framework for the destruction or retention of genetic material should mean a consistent approach to this issue in future. The Bill brings to an end the inevitable police authority postcode lottery, when the matter was left to the discretion of individual chief officers. Of course, once an offender is convicted, the issue is very different but, from my reading of the Bill, is it really proportionate that an 18 year-old who is convicted of drunkenness or driving without due care and attention should have their DNA profile retained indefinitely by the state? How is such a situation in line with the spirit of the Rehabilitation of Offenders Act? Is there not a point at which, if someone is in no further trouble, the profile is removed?
Secondly, I turn to the nature of the material. “If you are innocent, why worry about being on a database?”, has been the response of some of the tabloid press and even the Home Office under the previous Government. Apart from the fact that we live in a free country, DNA samples degrade over time. Samples do not merely identify you, like fingerprints or the DNA profile; DNA samples are you. Therefore it is valuable material, especially in unscrupulous hands. I welcome the introduction of a strict regime to deal with the destruction of DNA samples because, although I am not a pessimist, not long ago, the names, addresses, and bank details of 7.25 million families in receipt of child benefit were downloaded on to disks, put on a courier bike and never seen again. I did feel for the then Chancellor, just like I felt for Bob Quick who walked into Downing Street with highly classified information on public display. It is easily done.
I hope these serious but rare examples explain why I have been ill at ease with the thought of DNA samples stored somewhere instead of being destroyed. Also I was troubled to read in the report of the Joint Committee on Human Rights, of which I am now privileged to be a member, of the practical difficulties—or perhaps insuperable obstacles—in the destruction of innocent people's DNA profiles. Apparently innocent and guilty people’s DNA samples are held in groupings that are now difficult to separate. To avoid the misuse of these innocent profiles in the future, I hope that the Minister will be able to assure your Lordships’ House that the Bill will result in the destruction of DNA profiles, and not merely the deletion of the connection between the DNA profile and the identity of the person whose profile it is. Further, I urge the Minister to have a strict timetable under Clause 25 for the destruction of existing biometric material, although I understand that there are resource implications.
Finally, I move to the effect on particular communities. In 2007, the Home Affairs Select Committee concluded in its report, Young Black People and the Criminal Justice System, that:
“A larger proportion of innocent young black people will be held on the database than for other ethnicities given the small number of arrests which lead to convictions and the high arrest rate of young black people relative to young people of other ethnicities”.
I understand that you are three times more likely to be arrested if you are a young black man than your white counterparts. The noble and learned Baroness, Lady Scotland, in giving evidence to the Home Affairs Select Committee, predicted that soon three-quarters of young black men would be on the DNA database. According to the Human Genetics Commission, this prediction came true in November 2009. By the end of last year, just over 500,000 black people in England and Wales were on the DNA database. Not only is this a travesty, but it is hard not to believe the anecdotal evidence, supported sometimes by former senior police officers, that the power of arrest has on occasion been used merely to obtain DNA. Against this background, I ask the Minister to consider whether the commissioner should have a defined role in monitoring the ethnic profiles of people on the database.
How did the country of ancient liberties and the Magna Carta come to this? It is not a rhetorical question. Infringements on citizens’ liberties often must occur when public safety is at risk. But people, and Governments, often overreact to a threat to their safety. That is why your Lordships’ House had to prevent the introduction of excessive detention periods. Even if DNA techniques were like “CSI: Miami”, the state keeping the DNA of 1 million innocent people would still be an overreaction. I welcome this Bill.
Baroness O'Loan
My Lords, there is much to be welcomed in the Protection of Freedoms Bill. Issues such as the modification of the rules relating to powers of entry and the new rules on biometric material, including the requirements for the destruction of certain DNA samples, are important. As one who has had responsibility in the past for the destruction of DNA samples, I would ask the Government whether there is an intention to provide also for the destruction of the records which relate to those samples, because we discovered that this was an adjacent need.
I welcome the disregarding of convictions under Part 5, Chapter 4. I share the concerns articulated by the noble Baronesses, Lady Hamwee and Lady O’Neill, and the noble Lord, Lord Bew, in relation to Clause 100 and the freedom of information provisions for data sets.
I would like to endorse the many comments that have been made in relation to the protection of children under Part 5. There are concerns about the extent to which existing protections for children may be reduced by the exclusion of volunteers working, for example, in classrooms, sporting organisations and other supervised groups where the contact may be frequent and ongoing. Those are very important contacts because they help children, but they can also be used by abusers to build a relationship which may result in harm to children. The question that I have been asked is whether the proposed arrangements will, for example, permit an adult who has been barred from taking up a regulated post to volunteer for an unregulated activity? Are the Government satisfied that the proposed arrangements, which would place an individual on a barred list only if they have been, will be or are likely to be engaged in regulated activity, adequate? Will the result of this be that concerns about those not in regulated activity cannot be shared with the ISA?
The second area to which I wish to draw your Lordships’ attention relates to Part 2. The Regulation of Investigatory Powers Act deals with a range of investigatory techniques, including interception of communications, access to communications data, directed surveillance and intrusive surveillance, such as placing bugs in homes and cars. These techniques are widely used by a range of bodies.
I welcome the introduction of Clauses 29 and 34, providing for a code of practice for the development and use of surveillance camera systems and the creation of the Office of Surveillance Commissioners. The commissioner will have the responsibility to encourage compliance with the new camera code, review the operation of the code and provide advice about it. However, that is a very limited remit. There appears to be no provision for complaints about inappropriate use of surveillance cameras. There is currently an investigatory powers tribunal that deals with complaints under the Regulation of Investigatory Powers Act. It has received 1,120 complaints in 10 years and has upheld only 10. Five of the 10 were upheld in 2010 in respect of members of one family who complained about unlawful surveillance by a local authority. In only six other cases in 10 years has surveillance been found by the tribunal to be unnecessary or disproportionate. This is in the context of some 2.7 million surveillance decisions.
Clause 37 is an attempt to regulate the use by local authorities of surveillance powers by requiring the authority to seek judicial consent for such activity. The Minister articulated the disproportionate use of such powers in his opening address. It is right that there should be a requirement for judicial authorisation. It has been suggested that the police and other public authorities should be subject to a similar control mechanism following the revelations of very long-term surveillance by the police in the context of public protests and campaigns.
Clause 37 gives the Secretary of State power by order to require judicial authorisation for surveillance by other public authorities. The Regulation of Investigatory Powers Act already requires a complex process for authorisation and discontinuance of the use of directed surveillance. There is a very significant problem that lies not in the authorisation process, which requires significant thought, process and decision-making both to initiate and terminate surveillance activity, but in the mechanism created under RIPA for the regulation of surveillance activities. That process was described by the president of ACPO as,
“no longer sufficient to secure the confidence of right thinking people that such interference with citizens' rights (with its foreseeable collateral intrusion on many) is appropriate”.
There is a risk that when Parliament creates regulatory structures, it assumes that the job is being done. That is perfectly legitimate. However, changing circumstances may create an environment in which regulation becomes ineffective.
I will leave aside the operation of the Interception of Communications Commissioner and the Intelligence Services Commissioner. However, I will refer to the regulation of police activities that are overseen by the Office of the Surveillance Commissioner. The office comprises 26 people, including administration and support staff. They regulate, on an annual basis, the activities of some 60 organisations, including all police forces. On a biannual basis they examine some 25 organisations, and on a triannual basis they examine a further dozen authorities and more than 430 local authorities in England, Scotland and Wales. They are responsible for at least 500 organisations, some of which employ tens of thousands of people and have used RIPA powers on millions of occasions over the past 10 years.
The effective use of specified investigatory powers is critical to the fight against serious and organised crime. These powers have enabled some of the great triumphs of policing. Surveillance is a profoundly important tool. Properly used, it can result in the prevention and destruction of criminal activity, and the successful investigation leading to prosecution of crimes such as drug and people trafficking, money laundering and murder. The specific nature of the techniques and processes are rightly protected. However, because of the nature of the powers and the work in which officers engage when using them, there is international recognition of the risk of the corruption of those officers.
The regulatory process, among others, must be capable of acting as a check to the potential for such corruption, with all its attendant risks, by auditing the use of regulated techniques. I have seen situations in which RIPA was not complied with, despite the existence of extensive police command structures and the Office of the Surveillance Commissioner and its inspectors, resulting in the ongoing commission of serious crime by those being paid as informants by the state. In his annual report for 2010-11, the Chief Surveillance Commissioner indicated clearly that he had concerns about how the system was operating. He stated:
“I have commented in previous reports that there appears to be an over-reliance on the capacity of the OSC to examine authorisations. I remain concerned that my limited capacity is misappreciated ... My inspection capability is limited. The sample of documents which can be examined is small and the inspection can only be regarded as a ‘snapshot in time’; it is not an indicator of trends … In order to achieve a reduced budget for the financial year 2011-12 I have reluctantly reduced by capacity by one Inspector”.
He had seven inspectors to do all these inspections. Now he has one fewer. He has also reduced the secretary post and downgraded a further post. He states:
“My capacity has always been limited and I wrote to the Home Secretary to explain the impact of reducing my budget ... I recognise the severity of the country's financial situation but a reduction of nine percent has serious operational repercussions in a tiny organisation”.
This organisation has responsibility for protecting the freedoms of people in this country. The Bill presents an opportunity to address these issues.
I suppose my question is, “Must we wait until there is another scandal, as there inevitably will be?”. I would like to endorse the suggestion of the noble Baroness, Lady Doocey, that it would be possible to place the office of Surveillance Commissioners and the Commissioner for the Retention and Use of Biometric Material in the Office of Surveillance Commissioners, thereby avoiding the creation of two new quangos in a term in which we are dealing with the Public Bodies Bill and also ensuring the economies of shared services. Could the Government also make a decision to review the office of the OSC and of the Investigatory Powers Tribunal and in the interim to enhance the budget, so that these regulatory processes will more effectively enable the ongoing protection of the country?
Baroness Heyhoe Flint
My Lords, at the risk of sounding like Little Miss Echo to my noble friend Lord Addington, my interest in the Bill centres on the impact it will have on the sports sector, particularly the work undertaken by national governing bodies of sport, NGBs, to ensure that all participants in sport are given a safe environment in which to play and administer, especially where a vast number of amateurs and volunteers are concerned.
First, I declare my interests as a board member of the England and Wales Cricket Board, an honorary life president of the Lady Taverners, who assist youngsters with special needs to give them a sporting chance, a vice president of Wolverhampton Wanderers Football Club—13th in the Premiership—and trustee of Wolves Community Charitable Trust.
NGBs such as the England and Wales Cricket Board and the Football Association have the duty to promote and regulate sporting activity in a structured environment. One of the duties they take extremely seriously is the welfare of those who participate in sport. We need to send out a message to parents that their children will be well looked after when they are involved at sports clubs or in other forms of leisure and sporting activity. I therefore support the Government’s work to safeguard vulnerable groups and the reforms set out in the Bill, such as the introduction of portable criminal record checks, which will make life easier for governing bodies which undertake a huge number of checks each year on their employees and volunteers.
I have two concerns, which I know are shared by many on all sides of this House, not least the right reverend Prelate the Bishop of Bristol. Concern number one is that Clause 79, on the disclosure of information, has the specific intent to remove the requirement that a person must send a copy of their CRB to a national governing body. Concern number two is that Clause 64, on the definition of regulated activity, aims to reduce the number of individuals who are regulated by excluding those who are subject to day-to-day supervision. The ECB, for example, currently processes vetting checks on all in cricket who work with children, whether these are individual coaches coming from overseas for the summer or long-term volunteers in their sporting community. More than 85,000 people have been checked by the ECB since 2003, when checks were first introduced. As the noble Baroness, Lady Dean, has noted, the Football Association does 35,000 checks a year.
Those who manage these vetting arrangements at the ECB and at other sporting bodies tell me that the changes proposed in the Bill increase the risk of dangerous individuals coming into contact with children. The proposed changes would therefore mean that registered bodies would be denied access to relevant information about all individuals who could pose a risk to children. Bodies such as the ECB currently manage disclosure content centrally with experienced and trained staff, ensuring consistency of decisions across the game. Obviously, the average club-level volunteer does not have such expertise. If, in future, an individual has to show their disclosure to their local sports club rather than to the governing body, there will be two problems. First, someone may have to show that they have a criminal record to their immediate peer group, undermining their privacy and possibly increasing the chances of collusion or of falsifying forms. Secondly, training will need to be provided to local club volunteers on how to handle disclosure content, which will increase burdens on volunteers at a local level and will mean extra costs to NGBs centrally to develop and run this training, thus creating a costly and time-consuming level of bureaucracy. All this would be unnecessary if the governing bodies received copies of the disclosure directly, which is what happens now.
The informal nature of volunteering in sport presents opportunities for individuals to withhold information. As a consequence, it is those types of individuals who pose the greatest risk to children and are likely to be manipulative in their behaviour, yet could still integrate into the club. It is surely not right that those who volunteer in sport, doing so no doubt because they love that sport, suddenly have a working responsibility to become experts on criminal record checking procedures.
Clause 64 amends the Safeguarding Vulnerable Groups Act 2006 by narrowing the definition of regulated activity, as my noble friend Lady Walmsley mentioned. Crucially, this would exclude any role fulfilled while subject to the,
“day to day supervision of another person who is engaging in regulated activity relating to children”.
The proposed changes mean that an individual who has been barred would not be prevented from working with children in a supervised role—for example, as an assistant coach at a cricket club, provided that another supervising adult such as a head coach was present, because that assistant coach will no longer be liable to a full criminal record check.
With respect, the new arrangement fails to understand the way in which sports clubs are run. The House needs to note that, for example, many sports coaches, club minibus drivers and match organisers in a sports club could be considered as assistants if the club has a head coach, but unless the head coach were working alongside every volunteer assistant at every session it would be wrong to classify these people as assistants. I ask the Minister to consider how a sports club is to interpret the concept of supervision when on summer or winter evenings successful cricket clubs and junior football clubs may have hundreds of children being coached across a spread of sports fields and pitches. Does the head coach actually spread himself or herself to supervise every one of these sessions and all the volunteer assistants involved? That is an unfair burden to place on the sports club and one that may deter volunteering as well as reduce protection.
I hope that these concerns are well understood. My request at this stage of the Bill is that perhaps the Minister may agree to meet a delegation on this issue, including national governing bodies of sport, the Sport and Recreation Alliance and even Girl Guiding UK, which has also contacted me. I humbly suggest that just small amendments to the otherwise excellent Bill would uphold the protections that this House, the Government and all sports bodies and organisations want to see applied in order to safeguard potentially vulnerable groups of sport-loving youngsters.
Lord Kennedy of Southwark
My Lords, it is fair to say that the Protection of Freedoms Bill contains interesting as well as worrying proposals. Many of the proposals are welcome and noble Lords on these Benches give them their full support. There are, however, other aspects of the Bill that are worrying and we on these Benches will have to oppose them.
The title of the Bill is a bit over the top if you look at the subjects contained in it. They are a collection of issues that do not necessarily fit very well together. Maybe that is why the Bill has a rather grandiose title but not so grandiose items. In some cases, the Bill contains some very risky proposals.
I have the greatest concern about the proposals concerning DNA. When my right honourable friend Alan Johnson was Home Secretary, he brought forward legislation providing for essential safeguards regarding the use and retention of DNA. These are serious matters and we should seek to achieve a sensible balance. I believe that we had that balance, but now the Minister is taking risks with our freedoms in his proposals regarding DNA. What evidence does he have to make these changes in respect of the retention of DNA samples?
Can the Minister also direct some of his remarks to the number of people who have been caught committing serious offences only because their DNA sample was on the database? Under these proposals, the DNA evidence would never have been there. Kensley Larrier, Lee Ainsby and Abdul Azad have all been convicted of the offence of rape, using DNA evidence held on the database. If these proposals had been law at the time that they committed their offence, the evidence that convicted them would not have been available. They would have been free to carry on committing further offences. How is that protecting our freedoms?
Government have a duty to protect their citizens. These proposals weaken their ability to do so. They are wrong, they are risky and they should be opposed. Parts of the Bill, as I said previously, are very welcome. Proposals regarding the express parental consent for the use of children’s fingerprints are welcome. Other proposals, such as those to deal with rogue wheel clampers, making it a criminal offence for cowboy clampers to immobilise, move or restrict the movement of a vehicle without lawful authority, are also welcome and merit considerable support around the House. They are welcomed by the motorists who have had to suffer at the hands of these rogues for far too long.
I am disappointed that the Government have chosen not to deal with the issue of ticketing in this respect, as my noble friend Lady Royall outlined earlier. I hope that noble Lords can persuade the Government that this is an issue that they need to address during the passage of this Bill through the House.
I also welcome the proposals in the Bill to provide a scheme to deal with convictions for consensual sex between men above the age of consent. These proposals have been too long in coming. The Government are right and they should be congratulated on putting these proposals forward.
As my noble friend Lady Royall said, the August riots gave us a timely reminder of the benefits of CCTV. It is an important tool in the fight against crime and it is disappointing that proposals from the Government may make this more difficult. I hope that any code is as light a touch as possible, but it seems odd to me that these provisions will not apply to all. I hope that the Government will keep that under review.
Like many noble Lords, I welcome the proposals regarding freedom of information. I am a big supporter of freedom of information legislation, and proposals to increase its scope and deepen it further will always have my support.
My final comments are around the issues of the detention of terrorist suspects and the proposals for detention periods of 14 days and 28 days. If we can all accept that 14 days should be the norm, where we may differ is how we get to 28 days in exceptional circumstances. There are many noble and learned Lords in your Lordships’ House, and I hope that they in particular will be able to give the Government timely advice on how to proceed carefully in this area.
In conclusion there is a lot that I can welcome in this Bill, but there are some really dangerous, misguided aspects in it. I hope that your Lordships’ House will be able to persuade the Government that they need to think about them again.
Baroness Randerson
My Lords, I strongly support the spirit that unites this wide-ranging Bill. This evening it has been called a Christmas pie and a mishmash. Whichever view you take of it, it certainly covers a great deal of ground. We have had a debate which has touched on virtually every aspect of this Bill and heard some very important points from all sides. I am delighted that there is so much agreement on some parts of the Bill.
In the last 15 years or so, I believe that we have been sliding almost imperceptibly into a society where we take for granted that the state has the right to look into almost every corner of our lives. We take our liberties rather too much for granted in Britain. Because they have not been threatened in a wholesale way in the adult lifetime of almost all of us, we accept that those liberties are there. We have allowed them to be eroded on a piecemeal basis. We have not really noticed it happening, but if you add up one measure after another taken under the previous Government, in total it amounts to a considerable intrusion into our lives.
These steps were of course taken with the best of motives. It is a natural human reaction that when something terrible happens we all say that something must be done to stop it ever happening again. In the name of safety and security, the previous Government eroded the concept of innocent until proven guilty by retaining the DNA of over 1 million people who have not been found guilty of a crime just in case those samples might be useful in the future. They eroded the right to liberty by extending the period of pre-charge detention. They eroded our right to trial by jury. They eroded our right to live safely in our own homes by creating hundreds of new powers of entry so that there are now more than 1,200 separate, different and therefore confusing powers of entry. Significantly, nearly 500 of them were created by secondary legislation.
The previous Government also eroded trust by their plans to introduce the draconian vetting and barring system which would have forced 11 million adults to pay for registration in order to prove that they were not abusers of children. The key issue to me on this matter is that it deters volunteers. I contend that the benefits of community volunteering greatly outweigh the benefits of vetting and barring on the draconian scale assumed by the previous Government.
The previous Government eroded our right to walk peacefully along the streets by empowering the police to stop and search us without needing reasonable grounds for suspicion. The figures on this give a very worrying picture. In 2008-09, there were 210,000 stop and searches that led to only 1,245 arrests, and of them only nine were for terrorism. There has undoubtedly been considerable damage to community relations as a result of this broad-brush approach.
I said at the outset that these steps were taken with the best of motives. Our country faces new threats and challenges. Terrorism, although not new, is newly fierce among us, and there are the old threats, the old evils, that we have been too blind to in the past, such as paedophilia. In attempting to deal with these problems, it is important all the while to keep in mind that the response has to be proportionate. For example, the previous Government legislated to keep biometric data for as long as possible in case they might be useful one day. By spreading the net wider and wider they seemed to hope that they would legislate away crime.
There has been another factor at work, which is technology. Many of the developments that I am referring to—DNA samples, CCTV or the ability to create and interrogate vast databases—would not have been possible 25 years ago. There is a human tendency to feel that if the technology exists, we need to use it, but we have been in danger of making ourselves the slaves of technology, rather than its masters.
I shall briefly tell the story of a lady who was my constituent. She was elderly, frail, very timid and of exemplary good character. She came to see me following a traumatic experience. Her husband, who suffered from Alzheimer’s, had had a stroke, fallen over and hit his head. Following that accident, she was arrested by the police on suspicion of attempted murder. She came to see me after a very traumatic episode to complain not about the arrest but about the fact that they had kept her DNA. We went to see the chief police officer and asked for that DNA to be destroyed. The answer we got was that it would be highly unlikely that that could happen, even though it fulfilled one of the two criteria for the destruction of DNA samples, which is that there was no crime in the first place. A system that ensures that that lady’s DNA is kept in perpetuity is overwhelmingly draconian and needs to be put right.
There are details in the Bill that need questioning and interrogating, and I have concerns about one or two of its provisions—in particular, as some noble Lords have already mentioned, issues in relation to university research. I also wish to probe the Minister about the provisions in relation to CCTV cameras because I have come across two serious abuses of CCTV cameras, one on university property and one on National Assembly for Wales property, and I cannot see that they are covered by the Bill. I will be pursuing those issues in future, but I believe that, in general, this Bill is a proportionate response to the threats and problems of our society.
Baroness Grey-Thompson
My Lords, in this Second Reading I had considered raising in some detail the issue of parking infringements and ticketing, in Chapter 2 of Part 3 of the Bill, especially in relation to how the Bill may relate to the abuse of blue badge parking by large numbers of individuals. I believe that this abuse highlights something of wider concern, which is a widely held, negative attitude that is being directed towards disabled people. Perhaps, however, I will come back to this at a later stage.
Unsurprisingly, I have decided to keep my main comments at this stage to those parts of the Bill which could have a serious effect on British sport. I refer specifically to Part 5 of the Bill, on safeguarding vulnerable groups. I support the comments of the noble Baroness, Lady Dean of Thornton-le-Fylde, in calling for the correct balance for criminal record checks. As a volunteer in sport, I admit that I have felt a certain amount of frustration with the system in the past. Over the years, however, the system has improved greatly. At one point, I think that I held five separate CRB checks—one for a charity of which I was a trustee, where I did not actually meet any children. Therefore, I strongly welcome the sections on portability, which is very valuable.
As a mother whose daughter is involved in many sports, I like the reassurance that checks have been carried out on the volunteers who work with my daughter, and also that these checks have to be periodically updated. Sport currently has a robust framework in place for safeguarding children and it is well placed to determine who should be checked. Those involved also understand the huge risks to their sport of not protecting young people. It is essential that sport and recreation organisations have clear information about volunteers who pose a risk. Volunteers working in sporting environments have access to large numbers of children and vulnerable adults, and are in a trusted position. National governing bodies ask coaches, volunteers and officials to undertake regular continual professional development, and I see the safeguards and CRB checks as a part of that process. They have become an accepted part of being involved in sport.
I understand that one of the aims of the Government’s proposals is to protect individuals who may receive a certificate with inaccurate information. Since registration began in my own sport of athletics, only one check has been returned with a major error, displaying incorrectly that the individual had been barred from working with children. This error was corrected one day later by the Criminal Records Bureau. Athletics—I declare an interest, in that I sit on the board of UK Athletics—is a large sport with many thousands of volunteers. To put this into further context, last year approximately 7,000 checks were carried out through the centralised system. These were carried out by experts in the field. At present, only two individuals within UK Athletics are able to view criminal record disclosures. Clause 79, covering the disclosure of information, would seriously undermine the anonymity of the current system because the safeguarding team would have to chase copies of the disclosures.
The current system, which is centralised within the NGB, prevents the need for the volunteer to get involved. Withholding disclosures from the NGB would mean that the individual is flagged up to the NGB as not having returned their certificate, maybe unfairly, which could lead—again, unfairly—to suspicion. Those who we would not want to be working with children could delay a return of forms, thereby giving themselves longer access to children. The administration also has a financial cost which must be considered.
The provisions in the Bill put the onus on the individual—volunteers who often have many other commitments—to provide information to the national governing body. That could cause many difficulties. For the individuals who have to return the disclosures by post, there are further costs such as recorded delivery. For those who do not want to send their sensitive documents back by post, a volunteer at the club may have to view the disclosure. That puts other club volunteers in a difficult position, as has been well described by the noble Baroness, Lady Heyhoe Flint.
Without volunteers, British sport would not exist. I think virtually all the athletes I know who compete at GB level have been coached at some point in their career by volunteers. But sport also needs young people taking part in it, and parents need to feel a level of reassurance.
I also have some concerns over Clause 64, which narrows the definition of “regulated activity”. It makes an assumption that day-to-day supervision is enough, but I believe that the proposed changes mean that an individual who has been barred would not be prevented from working with children in a supervised role. The issue of “regulated activity” has been raised by many in your Lordships’ House, so I will not talk any more on this point now, but I agree that it places another unfair burden on yet other volunteers. I believe that it might be appropriate for all bodies in this sector to be granted an exemption from Clause 64(5).
I would like to ask the Minister for his reassurance that the protection of young people and vulnerable adults will be uppermost. The role of a coach or volunteer is hard to define. While a coach may say that they “just” spend several nights a week at a club, it is so much more than that. The coach can be a mentor, a friend, someone who challenges the young person to be the best they can or someone who sees you through the difficult teenage years—a confidant. My coaches were all of those. By their very nature, strong bonds are built. The coach is there to help a young person fulfil their dreams in sport. They hold a unique position in a young athlete’s life, and there is great potential for misuse of the role by those who wish to.
Finally, I would like to ensure that we have a system that is as simple as possible, and I would welcome further debate in this area. Record checks should protect coaches or volunteers from error, but they must also protect the children and vulnerable adults who are in sport.
Lord Rosser
My Lords, we have had a lengthy and interesting debate. With a Bill that covers a number of separate issues, it is not surprising that we have heard a number of thoughtful speeches that have concentrated on specific areas addressed in the Bill. These include the impact of Freedom of Information Act changes on universities and their research work, changes to the vetting and barring procedures, and DNA retention. We also heard a glowing testimonial to the last Government from the noble Lord, Lord Selsdon, although I had better add for the noble Lord’s sake that it related only to the specific issue of powers of entry.
This Bill, as my noble friend Lord Kennedy of Southwark said, has a somewhat grandiose title, but as Mr Edward Leigh, the Conservative Member of Parliament for Gainsborough, said in the other place in March this year:
“Compared with the Deputy Prime Minister’s rhetoric last year about bringing in a Bill to ‘protect our hard won liberties’, much of it is a bit tame”.—[Official Report, Commons, 1/3/11; col. 225.]
It is hardly a piece of legislation on a par, for example, with the Human Rights Act 1998, the Freedom of Information Act 2000, the Data Protection Act 1998 or the Race Relations (Amendment) Act 2000, all of which were enacted by the previous Government.
However, the Bill affects important issues and makes proposals involving change in a rather different climate from that which existed when some of the original legislation was passed in this House and the other place. My noble friend Lady Royall of Blaisdon went through the Bill in her speech and set out the parts with which we agree, those with which we disagree and areas where the Bill remains silent but which we think should be addressed. I do not intend to repeat all the points made by my noble friend but will concentrate my comments on particular aspects of the Bill.
The proposals for changes to the vetting and barring regime drawn up following the horrific Soham murders are a cause of concern, not because they make changes but because of the nature of the changes that they make. These were referred to by, among others, my noble friend Lady Dean of Thornton-le-Fylde. Under the Government’s Bill, it will be possible for people to spend time working with and in regular contact with children who will not have been subject to the barring arrangements. Such a situation could arise if the individuals concerned are meant to be being supervised by someone else to a greater or lesser degree. In this situation, it will not be possible to ascertain whether the Independent Safeguarding Authority had ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information on the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the independent authority may have come to, despite the fact that one would expect it to have some expertise in this area.
The objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person either as an employee or a paid volunteer in work with vulnerable people should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made. Serious and potential serious sexual offenders are all too often very determined and very good at covering their tracks and activities. It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety, particularly a vulnerable person or, in extreme cases, at the expense of their life.
The Government are proposing changes to the retention of DNA samples. In the light of reoffending rates and the benefits of preventing and solving crimes, the previous Government had already legislated for a six-year retention period for those who were not convicted. The then Opposition did not oppose the six-year retention period, no doubt because they accepted that a number of serious offenders, including murderers and rapists, were brought to justice after committing other crimes, because of DNA profiles. Yet this Government now propose to bring the retention period down to three years for an adult who is charged with, but not convicted of, a serious offence. We have not yet heard any convincing evidence that supports such a step, which will make it more difficult for the police to solve and prevent serious crimes.
Certainly the Government’s evidence is not convincing. Their proposal appears to reflect the Scottish model of a three-year limit. That was based on a report by an academic and seemed to be determined by a judgment of the appropriate balance and interpretation of an ECHR decision rather than empirical evidence. The Government have undertaken separate analysis of the Scottish model of DNA retention, and the results suggest that the earliest that offending risk in the charged group falls to the level present in a comparable general population is just over three years after the initial charge. That is based on a comparison of only the lowest-bound hazard curve for the charge group and the risk estimated for all individuals in the general population. It really is a case of being highly selective over the figure picked to try and provide backing for a predetermined point of view.
The six-year retention figure in the Crime and Security Act 2010 was based on extensive Home Office analysis on the length of time for which the offending risk of a group of individuals who might be subject to the retention policy is above the level observed in the general population, known as the hazard rate. The analysis suggested that within four years the hazard rate converges with that for the peak offending age group—males aged 16 to 20. The cohort converges with the general population only after a significantly greater number of years.
In its evidence to the Commons Public Bill Committee in March this year, ACPO stated that,
“we felt that the Crime and Security Act 2010 represented fair balance and was evidence-led, in that there was a body of research around how that measure would play out in protecting the public”.
ACPO went on to say that the Scottish model,
“does not appear to be evidence-led in the way it has been constructed”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 8.]
ACPO estimated that there would be a loss of about 1,000 matches per year under the changes proposed in the Bill. In other words, people currently brought to justice for serious offences because of DNA matches would escape justice and quite probably commit further serious offences. This is not an area where we should be taking chances by making a change based on less than convincing evidence.
In addition, in more than two-thirds of rape cases in which a suspect is arrested, there is no charge. Under this Bill, DNA will be kept where there is no charge in only very specific circumstances, so the DNA will be lost in most of these cases, even though, as the hard evidence shows, it can lead to a repeat offender being caught for this particularly unpleasant and violent sexual offence. Associated with this issue we also consider, as my noble friend Lady Royall of Blaisdon said, that a new clause should be added to the Bill to make a specific new offence of stalking. We shall be tabling an appropriate amendment in Committee to this effect. Stalking is currently covered by the offence of harassment, but the two are not the same and, to prove stalking, harassment also has to be established. There has been a change in Scotland where there is now a separate offence of stalking. The number of prosecutions for stalking is already this year some 10 times higher than the number of prosecutions when harassment was the offence that had to be proved.
The Bill addresses the issue of wheel-clamping and in particular the need to take action against rogue car clampers, with which we agree. We need to be sure, though, that the provisions of this Bill will not hamper action against the rogue parker: the kind of individual who leaves their car in your drive because your home is near a station or a football ground, or the kind of individual who leaves their car in parking bays reserved for disabled drivers at supermarkets and in car parks at leisure activity locations. These questions will need to be pursued during the later stages of this Bill.
The Bill proposes changes to the use of CCTV. Many people regard CCTV as a tool for preventing and fighting crime, and we believe that a full report is needed from the police on its effectiveness before we go down the road set out in this Bill. There may well be a case for some regulation on the use of CCTV, but this Bill provides for a new code of practice that appears to contain so much bureaucracy—with more checks and balances on a single camera than the Government are introducing over police and crime commissioners—that it is likely to deter or prevent the use of CCTV in instances where it would increase safety and security.
Local authorities and police forces will have a statutory duty to have regard to the code in their use of surveillance camera systems. Yet most cameras are used within the private sector. If the Government consider there to be a protection of freedom issue at stake, can the Minister say why no code of practice is to be applied beyond local authorities and police forces? Crimes, and particularly serious crimes, affect our security, and our freedom is in jeopardy if a Government do not regard the right to security as of paramount importance. The previous Government had to address unprecedented peacetime attacks, and the continuing threat of such attacks, on this country. We have heard a great deal in this debate about the rights of the individual, but we have to be careful in protecting those rights not to compromise the security and safety of our communities and our nation.
The previous Government presided over a year-by-year reduction in crimes of all kinds and a 43 per cent reduction in crime overall, according to the British Crime Survey. They left this country a safer place in which to live, work and play than when they came to office, and that is an enhancement in freedom that should not be casually dismissed.
This Bill will be the subject of detailed debate and consideration during its remaining stages, as it should be. While there are changes in this Bill with which we do not disagree—indeed, we agree—there are, as my noble friend Lord Harris of Haringey highlighted, other changes that, despite some of the rhetoric from the Government side, weaken not strengthen an all- important freedom: the right to safety and security for the people of this country.
Lord Henley
My Lords, I start with one point on which I am in total agreement with the noble Lord, Lord Rosser. The Bill will be the subject of detailed debate at its later stages and I look forward to those later stages. I also offer my congratulations to all noble Lords who spoke. I never thought it was likely that I would be getting to my feet so soon after 9 pm. I do not know whether the usual channels will notice this but I hope they do not suggest that we start every day with a two-and-a-half-hour debate on procedural matters hoping it will speed up later proceedings.
We have done very well to get through a big and detailed Bill of this sort—a Bill with some 115 clauses and 10 schedules—in the time we have. I will endeavour to be brief in responding because, as the noble Lord, Lord Rosser, said and I agreed with him, obviously a great deal of this must be discussed in further detail at later stages.
The Bill was described rather cruelly by the noble Lord, Lord Harris of Haringey, as a “mishmash” and by others as a “Christmas pie”. It is possibly a bit too early to describe it as a Christmas pie so I was going to use the word “pudding” because it is a mix of a number of things. The reason I wanted to use the word pudding is thinking of those great remarks of Winston Churchill to emphasise the fact that it has a theme running through it—it is not a pudding without a theme. There is a theme relating to the protections of freedoms that I hope I outlined at the beginning of the debate. There is also a theme that runs through the Bill which I again think is important—the noble Baroness, Lady Royall, referred to it—and that is one of balance. On each of the different issues that we will deal with, it is important that we address the question of the right balance between the protection of our freedoms and the protection of security. Very difficult judgments have always to be made in this area, which is what we will have to do. That is why I will come back to the word “balance” time and again.
The noble Baroness, Lady Royall, thought that the balance was wrong, but a great many other speakers, including my noble friends Lady Hamwee and Lord Goodhart, thought that the balance was right. The noble Lord, Lord Dear, thought that the balance was right, but he wanted to see extensions in the Bill in areas such as freedom of speech. He said that he would not bring forward amendments relating to freedom of speech or removing “insulting” from the Public Order Act while our consultation was out, but he asked whether it might be possible to have some debate on that. As always, I will say that that must be a matter for the usual channels, but no doubt the noble Lord will find some way of introducing it in Committee.
In the time available to me today I hope to run through the various parts of the Bill and make a few brief comments on them, starting with Part 1, on DNA and biometrics. I shall deal first with biometrics in schools, particularly because my noble friend Lord Lucas referred to the proposals as—I think that I have got his words right—a “daffy overreaction” to a perceived problem which would do nothing to improve safety or privacy. I note what he said, but I noted also that his general reaction to the Bill was positive. I can assure him that, although the coalition agreement is generally our bible and something that we always abide by, the proposals have been included not just for reasons of the coalition agreement. No doubt my noble friend will want to come back to that in due course.
On the wider question of DNA and whether we should keep the DNA of people who have not been convicted for three years or six years, again there was a division of opinion within the House. My noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Dear, both thought that the current position was untenable. I had the support of my noble friend Lady Randerson, but others, such as the noble Baroness, Lady Royall, and the right reverend Prelate, had considerable concerns. I think that it was the right reverend Prelate who used that dread expression “the precautionary principle”, which always worries me. I tend to run away when I hear about the precautionary principle, because it implies that one cannot do anything because something might go wrong. I do not know what it would prevent us doing if one took it too far, but, again, I note what he says.
It was my noble friend Lady Berridge, speaking from her experience as a barrister, who reminded us of the importance of the presumption of innocence, the right to privacy and the risk of a breach of Article 8 and rights of privacy if we kept an excessive amount of data. Again, these matters will have to be looked at in considerable detail, but it is important that we get this right. It is important also that we come to address the questions raised by my noble friend Lady Doocey and by the noble Lord, Lord Kennedy, who discussed possible costs to the police in dealing with that.
I will cover two other points in relation to the question of retention of DNA. I think it was the noble Baroness, Lady Royall, and the noble Lord, Lord Harris, who suggested that we were going to be taking some 17,000 rapists off the database and that potentially some 23,000 offenders’ details per year will not be entered on the database under these provisions. The contention that every single person suspected of rape will instantly come off the database is simply not true. It is about keeping the details of thousands of innocent people, who have not been convicted, on the DNA database because of a hypothesis that a proportion of them may go on to commit—
Lord Harris of Haringey
The figures I quoted were from the Home Office’s own figures, reanalysing the cases where individuals would have been taken off the database as a result of these changes and subsequently —these are facts and involve real people—gone on to commit other crimes in 6,000 or 7,000 cases. I will have to check my notes again on the figures, but these were serious crimes, including rape and murder.
Lord Henley
I will obviously allow the noble Lord to check his facts again in due course, but I stand by what I said. The presumption that he was making—along with, I think, the noble Baroness, Lady Royall—was that we were taking all these people off and that they were all going to be guilty. I was trying to make clear that simply keeping the details of those people on the database, because of a hypothesis that a tiny proportion of them may go on to commit serious crimes in future, is not actually going to do anything to increase the conviction rate for rape. As I explained in opening this debate, those charged with a qualifying offence, including rape, obviously will have their DNA retained for three years. It is then up to the police to apply to the courts to extend that by a further two years. That is set out in the Bill. For those arrested but not charged with a qualifying offence in cases where the victim is vulnerable, the police may still apply to the independent commissioner to retain their DNA for three years.
My noble friend Lady Berridge also raised the very important question of the over-representation on the DNA database of those from black and ethnic minority backgrounds. Obviously, the database is not self-populating, because for a person’s DNA to be taken the person must have been suspected of committing a recordable offence and that arrest in law must have been necessary. You cannot, as another noble Lord said, simply arrest so as to get the DNA. That is a significant threshold. However, our proposals will mean that the vast majority of those who are arrested, but not subsequently convicted, will have their DNA profiles destroyed very soon unless they are convicted of a crime in due course.
We have very difficult questions to address, again, on the regulation of surveillance and very difficult questions of balance between those who feel that we need further safeguards and those who feel that people always welcome more cameras, as I think the noble Lord, Lord Harris, suggested. I have to say he ought to look at Project Champion in Birmingham, which I referred to in my opening remarks, and he will find that that is not always the case. I had better stop mentioning the noble Lord if he is going to rise to his feet on every occasion, but I will give way.
Lord Harris of Haringey
Perhaps I will not rise on the next occasion you mention me. The issue about Project Champion was that people welcomed the original introduction. It was when they found out they had been misled about the purposes of the cameras that the anger—the very real and justifiable anger—arose.
Lord Henley
My Lords, it was a real anger and it was quite right that something should be done about it. I think he is wrong, though, to imply that people welcome more and more cameras on every single occasion.
Obviously, we have got to get this right, so I was very grateful that the noble Baroness, Lady O’Loan, for example, welcomed the fact that we were going to have a code of practice and a new commissioner. Again, she said it was important that further things should happen. I think she saw that there was insufficient provision for complaints to be made and she also suggested that there was not—I think I have it right—sufficient oversight. I will certainly look at that, and these are obviously matters that we can examine in Committee.
The last point that I should pick up on is that made by my noble friends Lady Miller and Lady Doocey, and the noble Baroness, Lady O’Loan, when they talked about the number of commissioners and considered whether there could be a merger of commissioners. I appreciate that the number of commissioners seems to be growing, but their roles are distinct. Again, that is a matter of detail that we should be able to consider in due course in Committee.
Turning to powers of entry, my noble friend Lord Goodhart, who generally welcomed the Bill, for which I was very grateful, raised the issue that it includes a number of Henry VIII powers. Whenever that expression is mentioned, I think back to what was almost the first Bill that I handled at this Dispatch Box, which related to statutory sick pay, which was one of the earliest modern reintroductions of Henry VIII powers. I remember the savaging that I received from the then good friend of the noble Lord, Lord Goodhart, Lord Russell, and the problems that we had with the Bill. When I die, no doubt Henry VIII powers will be found engraved on my heart. However, the noble Lord accepts the fact that it is possibly appropriate here, in removing powers of entry, to use those Henry VIII powers. I stress—in particular, to my noble friend Lord Selsdon—that that power is only for the repeal of powers of entry. Clause 41, which allows amendments to be made to powers of entry, makes it quite clear that those powers can be used only where they do not reduce the protection for the individual. Again, I pay tribute to all the work that my noble friend Lord Selsdon has done over the years in trying to reduce the number of powers of entry. In due course, I will write to him with further details on the code of conduct.
Turning briefly to wheel clamping, that is a matter for Committee on which I know that my noble friend Lord Attlee, who has great expertise in the area, will be able to deal with it. As my noble friend Lord Bradshaw said, this is something that we need to look at with very great care, especially access to the DVLA database. I shall also consider, as the noble Lord, Lord Kennedy, said, what we need to do about ticketing and abuse in that area. I have also noted what the noble Baroness, Lady Grey-Thompson, did not have to say about the abuse of blue badge parking, which concerns all of us and which we should address. However, clamping in a disabled parking area is not the solution to that problem, because once you have clamped a vehicle in that area, you cannot use that area. There are other, better ways to deal with that problem.
Moving to counterterrorism and the questions raised about the reduction to 14 days, I note that most noble Lords are happy with the reduction from 28 days to 14 days, but I note the concern about the measures that would have to be used to raise that 14 days to 28 days if we were in a difficult situation where we needed to do that. The noble Lord, Lord Kennedy, was very honest when he said that it was difficult to see how we could get from the 14 days back to the 28 days. We have to look at that. At the moment we have Clause 58 and the powers in the Bill as set out, but certainly we will want to look at those again very carefully. I note what the noble Lord, Lord Armstrong, had to say, that he thought that we had not gone far enough in what we were doing, and that it would be too difficult to do it. He would certainly want to try to extend Clause 58, as I understood him, to allow the Home Secretary to extend the period in other circumstances where appropriate. I was grateful that he made it quite clear that he hoped she would never have to make use of any of those powers.
I come now to vetting and barring, and again that expression I used at the beginning about getting the balance right is more important here than in virtually any other field. Of course, as the noble Baroness, Lady Grey-Thompson, put it, our first priority must be the protection of children and young people, and that will remain our priority. However, we obviously have to have the right balance, as was stressed by my noble friend Lord Hodgson, though others thought that we had got this wrong and thought more protection ought to be brought in. As I said at the beginning, I want to stress that if you bring in too great a control and too great protections, there is the danger of encouraging a tick-box mentality, which might not provide the better protection for children and young people that we want. Again, I will look at that as we discuss these matters in Committee.
I would say to my noble friend Lord Addington, and the noble Baroness, Lady Grey-Thompson, but more particularly to my noble friend Lady Heyhoe Flint, who all spoke about sporting issues, that I would be more than happy to see a delegation of sports bodies if she would like to bring them to see me in due course.
I would also like to suggest to the noble Lord, Lord Harris, who said that he was not happy about what might happen to volunteering and the risk to volunteers, that he look at some of the briefing provided by Volunteering England, which states:
“However, we would not want to see this wording tightened up by use of terms such as ‘close’ or ‘constant’ supervision, as has been suggested by other organisations, because it could further restrict the involvement of volunteers. If the requirements for supervision are too prescriptive, organisations may be put off from involving volunteers and potential volunteers deterred from volunteering”.
Lord Hodgson of Astley Abbotts
Will my noble friend give way momentarily? One of the questions now is: what is “frequent and intensive” when dealing with children and vulnerable adults? Are we going to have a new definition of it, and if there is a new definition of it, will it be available for discussion in Committee? Clearly, there is a wide range of opinions around the Chamber about how we should tackle that.
Lord Henley
How you would interpret those words is really a question of fact and degree. I will have a further look before we get to Committee to see whether I can write in greater detail on that. If I cannot, I am sure that it is something that we would want to discuss in greater detail in Committee and at later stages.
Finally, I come to freedom of information and data protection in Part 6. I will touch on this only very briefly because I understand the concerns expressed by my noble friend Lady Hamwee, the noble Lord, Lord Bew, and the noble Baronesses, Lady O’Neill and Lady O’Loan, about the publication of research, particularly early publication. I accept that there is a genuine concern coming from Universities UK.
Baroness O'Neill of Bengarve
I just want to clarify that. There is absolutely no concern about the publication of research. That is what researchers aim to do. The concern is about applying the publication criteria to databases which are of a size that precludes their being published in journals, monographs or any other way. These are causing concern for large numbers of research institutions which have such databases but are committed to open publication.
Lord Henley
I am sorry if I misunderstood the noble Baroness. I have written down “pre-publication”. I will look carefully at what she had to say. Certainly, I hope that we can address that in due course. The noble Lord, Lord Bew, said that we should copy Scotland but I think that the noble Baroness, Lady O’Neill, was not so keen on that idea. Again, we need to address these matters in due course and examine them in a manner that I properly understand, particularly as I just seem to have misunderstood the noble Baroness on this occasion. The noble Baroness went on to ask what she described as some boring questions about costs. As they are allegedly boring questions—I am sure they are not—I will address them in a letter.
That is a rather rapid gallop through some of the comments that we have received today. I thank all noble Lords for their contributions. If we can agree on nothing else, we can agree that we will have an interesting and possibly somewhat lengthy Committee stage. As noble Lords will know from the Motions that I will move after this Bill has had its Second Reading, it will move down a novel line with some of the Committee stage taking place in the Chamber on the more contentious issues and some taking place in Grand Committee. I hope that that will have the agreement of the House and that once the Second Reading Motion is agreed, your Lordships will permit me to move the other Motions that stand in my name.