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.
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.