Anti-social Behaviour, Crime and Policing Bill
(10 years, 9 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
15:54 - Division on Amendment 92 - Ayes: 179 / Noes: 230 - Amendment 92 disagreed.
16:33 - Division on Amendment 92A - Ayes: 165 / Noes: 241 - Amendment 92A disagreed.
Lord Harris of Haringey)
“Crime and disorder reduction: development control
(1) The Secretary of State shall designate a body representative of chief officers of police for the purposes of this section.
(2) A body designated under this section shall publish guidelines that specify for a particular type of development the measures that should be included in that development to promote—
(a) crime and disorder reduction, and(b) the prevention of anti-social behaviour.(3) Guidelines under this section shall only be produced following consultation with organisations that represent—
(a) local authorities, and(b) persons engaged in the design and construction of developments requiring planning permission.(4) A planning authority may, in respect of any application that it receives for planning permission, specify as a condition for the approval of that planning permission that the development concerned must follow guidelines published under this section.
(5) A planning authority may only specify a condition under subsection (4) if it is satisfied that to do so would promote—
(a) crime and disorder reduction, or(b) the prevention of anti-social behaviour.”
Lord Harris of Haringey (Lab)
My Lords, this is the same amendment I moved at Committee stage. I will therefore rehearse the arguments for it only briefly but also, I hope, respond to the points that were made against it in Committee.
The purpose of the Government’s Bill that we are considering—I am sure the Minister will have told us this many times—is all about reducing crime and anti-social behaviour. Indeed, as we know, overall crime has declined in the past 15 years or so, and the trend in burglary is particularly marked. Yet, unmentioned in the Bill, the Government are seeking to undermine the progress that has been made. During the past two decades, new developments, including homes—both new build and refurbished—schools, play areas, hospitals and many others, have increasingly been informed by and have adopted the principles of Secured by Design.
What has been achieved under this initiative carried out under the auspices of the Association of Chief Police Officers? First, Secured by Design developments— that is, those which use products and materials that it has approved—are half as likely to be burgled, and show a reduction of 25% in criminal damage. Secondly, the additional cost of using Secured by Design standards in the average home has worked out at only £170 per dwelling. In one year alone, some 700,000 burglaries could be thwarted if appropriate security devices were installed, representing an annual saving of more than £1.97 billion. Indeed, the Association of British Insurers has estimated that the Secured by Design standards across the UK would bring more than £3.2 billion-worth of savings to the economy over 20 years. Householders who are not offered security recommendations after a burglary are 69% more likely to suffer a repeat incident than those who are offered advice.
This is a success story that is widely copied internationally. It is the subject of many academic studies testifying to its efficacy and it was the subject of much support from all corners of the House when I raised it in Committee. Why, then, if it ain’t broke, are the Government taking it to pieces anyway? The Department for Communities and Local Government issued a consultation document in the depths of last summer, seeking views on a recent review of building regulations and housing standards. The proposals that it put out to consultation were for a two-tiered standard for security—a basic minimum level that would be generally required and a so-called enhanced standard. The basic standard is demonstrably inadequate and has been shown to have little security benefit. Specifying stronger locks is not much of a deterrent if the door is so flimsy that it could be kicked in with one firm kick.
The requirement for the lock itself, on the basic standard recommended by the Government, is based on a 26 year-old standard. It does not even require the British Standards kitemark lock. Instead, it requires a lock with only 1,000 key variations, vulnerable to the most basic forms of attack. Even the British Standards kitemark standard, which protects against drilling and cutting—I believe that these are the technical terms involved—is having to be revised upwards to allow for two increasingly prevalent forms of attack: lock snapping and lock bumping. For those who are not familiar with these techniques, I am told that there is a handy YouTube video that tells the aspiring burglar how to do it. The Government are therefore recommending a basic standard of security that does not even meet the British Standard, even though the British Standard needs to be revised because of standard attacks that are made on locks in this country.
In Committee, the Minister made much of what a step forward it was that this proposed basic security standard would now be a core requirement. It is not much of useful core requirement if the standard is totally inadequate. In 1999 and 2006, research studies compared burglaries on estates using the security standard for locks contained in the Minister’s core standard with those using Secured by Design locks. The latter suffered 70% less crime. The Government’s core standard is woefully inadequate.
What about the so-called enhanced standard that would be available in certain circumstances? Even this would be lower than the existing Secured by Design standards. However, it could be required by a local authority only where what is described as a “compelling case” exists for this higher standard to be the norm. To make this compelling case, a local authority will have to demonstrate that the development will be subject to an elevated rate of burglary and that there will be a higher than normal impact of burglary on the tenants. It goes without saying that this test is almost impossible to pass in respect of a new development, and the test has to be applied site by site in a way that is likely to produce confusion and added uncertainty for developers, who will not know when they submit a proposal whether the authority will attempt to apply the enhanced standard.
Lord Blair of Boughton (CB)
I support the noble Lord, Lord Harris, on the amendment, and declare an interest as one of the patrons of Neighbourhood Watch and Home Watch. I think that most of your Lordships will be aware of Neighbourhood Watch. It is a group of citizens who are concerned enough to have asked their chief executive to contact me to raise this matter. In other words, Neighbourhood Watch thinks that this is a pretty bad idea. That is quite important.
As a police chief, I spent a lot of hours standing next to Ministers of both parties supporting Secured by Design, so it seems odd that the Home Office now does not want to support it. I put it to the Minister that this has got caught up in the understandable concern about how ACPO itself set up a company to deliver Secured by Design. The purpose of the noble Lord’s amendment is that it will be a successor body to ACPO that will be involved in this area of policy, so I do not think that that issue arises any longer.
I said in Committee that as I understand it, or, rather, as Neighbourhood Watch understands it, the way in which the decision between ordinary and enhanced protection will be developed by a local authority is by crime mapping. The amendment is about new developments. New developments on brown or green sites will, of course, have no history of crime. Therefore, even if they are in a very difficult area, they will not get enhanced protection.
If ever I have seen a case of spoiling a ship for a ha’porth of tar, this is it. The difference in cost is £170. If noble Lords compare that to the number of burglaries that will happen as a result of the Bill, the House may choose to support the noble Lord’s amendment.
Lord Condon (CB)
My Lords, I declare my registered interest in policing. I support the amendment moved by the noble Lord, Lord Harris of Haringey, broadly for the reasons that he set out, reinforced by my noble friend Lord Blair.
We have 30 years of academic underpinning for this theory. It started with notions of defensible space by Oscar Newman. That was reinforced 10 years later by Wilson and Kelling, with their broken windows theory of maintaining property at the highest standards to prevent crime, and so on.
We have 20 years’ pragmatic experience of how Secured by Design has dramatically helped to reduce crime and in particular burglary and made neighbourhoods safer. In the ongoing environment of economic challenge to policing, I think the Secured by Design mark and all that it stands for as well as all the experience we have built up remain very valuable. Sadly, I fear it would be a step backwards if we are not allowed to bring forward this amendment successfully in the terms that the noble Lord, Lord Harris of Haringey, has set out. I hope the Government will find that they are able to give some way on this, because the Secured by Design legacy is a very important one.
Baroness Howarth of Breckland (CB)
My Lords, I shall speak briefly in support of this amendment and make three points. First, during my life, I have worked in some of London’s most insecure areas and seen insecure estates in the rest of the country. In north Brent and Brixton, crime was rife and burglary, in particular, was at a very high level. On a huge estate—I will not name it, because it has improved so much and I do not want to give it another bad name—I saw design improvements which removed some of the interconnecting corridors and looked at locks, considering the way in which the whole design process was put together so that it reduced crime substantially. If we start with design and local authorities have the option of putting design in place, we will ensure from the beginning that we do not create new estates where problems begin and residents suffer great dismay.
My second point is the localism argument, which has already been made very successfully. The third point is that anything that prevents burglary anywhere must be supported. Like other speakers, I do not understand how it is possible to assess where burglary is going to take place before an estate has gone up. In any case, people should be protected equally. Anyone who knows people who have been victims of burglaries, particularly some of the most vulnerable, will know that we should do everything in our power to prevent the emotional trauma—it is almost like rape—that they feel when they go into their homes and find tremendous damage. It is not just that things have been stolen; it is the feeling of intrusion into their lives.
There are very good reasons to support this amendment. The technical reasons have been put clearly by the noble Lord who moved the amendment and other speakers, and I support it on those grounds.
Baroness Hamwee (LD)
My Lords, I have been enthusiastic about designing in security for as long as I have had any involvement in planning, not just for the protection of property, but for the protection of people.
Two things confuse me about the amendment. One is that the debate, both on the last occasion and to a large extent today, seems to be about products and materials. I have always thought that designing in security starts with things such as defensible space, mentioned by the noble Lord, Lord Condon, and lighting, sight lines and corridors, mentioned by the noble Baroness. I am puzzled why so much of the debate has been about the strength of locks and window locks which, if they are considered anywhere, seem to be more a matter of building control than development control of the planning area.
Like many other noble Lords, I am instinctively against topdown impositions of requirements which should come about bottom up, organically, by local authorities, police and others working in partnership. The noble Lord, Lord Harris, talked about localism and I of course support that, but I would like to ask the Minister some questions relating to this. Perhaps he can explain to the House, and flesh out a little, the extent to which the security issues which we have been discussing can be taken into account in the refusal or imposition of conditions on planning consent currently made by a planning authority. Are there material considerations? I am asking whether the planning authority can currently specify as a condition the sort of security issues that we are all concerned about.
What the amendment proposes is, in a sense, statutory guidelines that would be discretionary in their application. That takes me to the second area where I confess to being a bit puzzled. I am unclear what precludes a local authority drawing up guidelines without having legislation requiring the guidelines to be there and available for the local authority to adopt at its discretion. Do we actually need something in an Act of Parliament which says, “Let’s do some work on something very sensible, but we are not even going to require it to be implemented”?
Lord Rosser (Lab)
My Lords, my noble friend Lord Harris of Haringey raised this issue in Committee, when he said that his amendment was to try to get clarity as to why the Government were seeking to make this change and to do something which was potentially so retrograde. My noble friends Lord Harris of Haringey and Lady Smith of Basildon both gave specific figures on the savings and reductions in burglary offences that had accrued, or were expected to accrue, when appropriate security devices are installed where new developments have been informed by, or have adopted, the principles of Secured by Design. My noble friend Lord Harris repeated some of those statistics today.
In his response, the Minister said that a consultation under the auspices of the Department for Communities and Local Government had taken place, which concluded, if memory serves me right, on 27 October last year, and that the Government were considering their response. The consultation document from the DCLG suggested a two-tier standard of security: a basic minimum level that would be generally required and a so-called enhanced standard. However, as has already been said, even the “enhanced” standard would be lower than the existing Secured by Design standards, and even then it could be required by local authorities only where what is described as a “compelling” case exists for the higher standard to be the norm.
In Committee—perhaps it will be different today—the Minister was unable to say whether we would know the outcome of the consultation by the time the Bill reached Report or Third Reading. Neither was he able to say why local authorities would not even be able to go to the higher, so-called enhanced standard or give an assurance that local authorities would be able to choose their standard, and not be obliged to follow either the basic or “enhanced” standard. Nor was he able to say that the Government would provide an opportunity for Parliament to intervene before any changes in the standards are made.
As my noble friend Lord Harris has said, the Secured by Design initiative is about reducing the incidence of crime. The Government’s proposals, which have been the subject of consultation, appear to go in the opposite direction. We have heard no convincing arguments from the Minister as to why there should be a change and nothing from him to indicate that the Government’s proposals are in any way evidence-based, particularly when it comes to the impact on the level of burglaries. We will certainly support this amendment if it is put to a vote.
The Earl of Lytton (CB)
My Lords, before the noble Lord sits down, would he not agree with me that the amendment would confer a particular status on Secured by Design or whatever body or organisation is in its lieu and that to do so in this particular context would create a quite curious structure? It is almost like an organisation that is operating on a statutory basis.
Secondly, would the noble Lord not agree with me that the police, knowledgeable though they are, are not the sole providers of intelligence on designing out criminal activity? There are many other bodies and professions which might legitimately be considered for this—the British Standards Institution would be one.
Thirdly, would the noble Lord not agree with me that the fact that there may be shortcomings in the specification of security, equipment and methodologies is not necessarily a reason for conferring a monopoly of this sort on this particular body?
Lord Rosser
I simply ask the noble Earl if he would agree with me that what is being proposed appears to put in jeopardy an arrangement, guidelines, and standards—Secured by Design—that on the basis of the figures we have heard, have had a considerable positive impact on the level of burglaries. It appears to me that the noble Earl is prepared to go along with a change that appears to put in jeopardy real progress that has been made through this initiative in bringing down the level of burglaries. That is a question that he should be asking himself rather than the questions that he has chosen to ask me.
The Earl of Lytton
My Lords, I am a victim of burglary myself, so I understand what it is about. It seems to me odd that the noble Lord feels that the proposals in the amendment are the unique and sole means of achieving what is required. With all the product availability and consultancy that there is, I do not believe that it is necessarily the case. I am particularly not sure that it is right that such an organisation should be given a statutory status and elevated position. It is, after all, a commercial operation. Would the noble Lord not agree with that?
Lord Rosser
I am not sure that the noble Earl and I should be having too lengthy a dialogue on this matter. I am not sure whether I got a very clear answer from him as to whether he accepted that what the Government are proposing may well put in jeopardy a very successful initiative, which over a period of years has had a very positive impact on the level of burglaries.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, with this amendment, the noble Lord, Lord Harris, has brought back the issue of the important role that design has to play in preventing crime and anti-social behaviour. It is important to stress that the Government recognise the importance of design in crime prevention. Nothing in the current proposals is designed to weaken that. I hope that the noble Baroness, Lady Howarth of Breckland, will accept that.
Before I respond in detail to the noble Lord’s amendment, I should like to emphasise that the housing standards review, which is the project under consultation at the moment and at the centre of the noble Lord’s concerns, was not initiated to cut standards irrespective of impact or to agree to a lowest common denominator approach. I cannot emphasise that enough. Its clear objective was to review a number of the voluntary standards—there are a number of voluntary standards—most frequently called up by local authorities. The aim was to identify opportunities for simplification, clarification and, if appropriate, those standards that are so important that they justify inclusion in a possible national standard or building regulations, which is a situation that may not always exist at present.
We are entirely supportive of the police continuing to advise local planning authorities on the layout of new development. We are all, I think, also in agreement that it is important to ensure that the police can continue to contribute their intelligence on crime to the development and implementation of standards. There will be no diminution of the role of the police in that respect. The new clause that the noble Lord proposes would place a mandatory duty on a body representing chief officers of police to publish guidelines on designing out crime that local planning authorities may then require builders to follow as a condition of granting planning permission.
As the noble Lord will be aware, the Government have spent considerable time tidying up the policing landscape to create a set of bodies with a clearly defined purpose. The Association of Chief Police Officers fulfilled an important role as the professional voice of the police service for many years, but as policing is changing, so too must ACPO. Many former functions of ACPO have transferred to the College of Policing and, in the light of the Association of Police and Crime Commissioners’ review of ACPO, there will be further consideration of the future delivery of some additional national functions. I am not persuaded that it would be right to pre-empt those considerations by designating a new or existing body, as the noble Lord is proposing today.
Many different expert groups have a role to play in the design, building and construction of the places where we live and work. Although I recognise that the noble Lord’s intention is to ensure that guidelines are drawn up in an open and transparent way in discussion with experts, I believe it should be left to the police and others to decide on the most appropriate groups to consult according to subject area. As a matter of good design, technical building standards and standards for the design and layout of the wider built environment are often considered together. That is indeed the approach taken by Secured by Design. However, in regulatory terms, the former are the domain of building regulations while the latter are matters for planning. Of course, the role of planning and building regulations needs to be understood in the broader context of crime overall, and on that matter I should like to offer some points of clarification.
When last we discussed these matters, the noble Lord set out a range of figures to exemplify the importance of security standards in new homes. While I have no wish to extend the debate unnecessarily as these figures have become a matter of public record, I think it is only right that we ensure that they are placed in context. The noble Lord, Lord Harris, suggested that if appropriate measures were installed some 700,000 burglaries could be prevented each year saving nearly £2 billion. According to the latest crime survey estimates, not only is this more than the total number of burglaries in England and Wales in 2012-13, it reflects burglaries in both old and new housing. The housing standards review sets out standards only for new development, not existing homes. Furthermore, the housing standards review does not propose stopping bodies such as Secured by Design bringing their own standards to the market for developers to use on a voluntary basis.
In relation to the question asked by my noble friend Lady Hamwee, local authorities are currently able to impose requirements on new development in relation to security, including adopting the principles of standards such as Secured by Design. Such standards may be delivered as a condition of planning permission, provided that the condition is necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in other respects—in other words, fitting the considerations that planning permission requires.
Lord Harris of Haringey
My Lords, I am grateful to the noble Lords, Lord Blair of Boughton and Lord Condon, and the noble Baroness, Lady Howarth, for their support for this amendment. It is also heartening to hear that neighbourhood watch schemes around the country believe that this approach is the right one. I am also aware that quite a number of senior local authority figures of all parties have expressed support for the principle.
I am also grateful to the noble Baroness, Lady Hamwee, for her support for the principles behind this. Quite properly, she said that Secured by Design guidelines include such issues as defensible space, lighting, sightlines and so on and she asked about the focus on locks. The reason for the focus on locks and such practical, physical measures in the course of this debate is that that is the area where the DCLG consultation, which includes the building regulations, is designed to weaken the autonomy of local authorities to decide what they think are the most appropriate standards in their areas. This is the reverse of being top-down; it is the Government who are imposing these changes top-down and preventing individual local authorities making their choices.
I have to say that I was puzzled by the Minister’s assurance that planning law does allow these things to be included in planning approvals. My understanding, as a local authority member for 26 years, is that planning approvals may include advice but only certain things can be included as mandatory as part of planning approvals. This would not be permitted under planning law to be one of those mandatory guidelines.
The noble Earl, Lord Lytton, seemed to think that this was some back-door way of giving statutory status to a bunch of senior police officers. I have to say that I do not think that is the purpose of it. The formulation,
“The Secretary of State shall designate a body representative of”,
is quite widely used in legislation to permit, without recognising a particular body, the use of a body which is broadly representative as being able to put forward a view. It is a standard approach. He also seemed concerned that the list of the organisations that should be consulted, given in proposed new subsection (3), was not sufficient. I would be happy to accept that it would be possible to amend it further to include that.
The Minister seems to be encouraging me to bring the amendment forward again in a slightly different form. If he is saying that the amendment would be acceptable if, instead of referring to,
“a body representative of chief officers of police”,
it said, “the College of Policing”, I am quite happy to bring this forward on another occasion. Is that what he is suggesting?
Lord Taylor of Holbeach
It is not what I am suggesting. I just pointed out to noble Lords what the noble Lord’s amendment said.
Lord Harris of Haringey
In that case, the points about the College of Policing were clearly rather academic.
The purpose of this amendment is to give local authorities the flexibility to set higher design standards, if that is what they want to do. The Minister has said that nothing the Government are doing is intended to weaken the security standards and that the housing standards review was not intended to bring about the lowest common denominator, but that is what it is doing, in practice. He talked about supporting the police in advising on a layout of a development, but this is not just about the layout of a development—it is about the security measures physically built into the development, which I do not believe can be part of a planning approval at present.
The Minister told us at length about the importance of tidying up the policing landscape, but that, frankly, is irrelevant. There will still be chief officers of police, unless there is some hidden agenda for the Government.
The Earl of Lytton
I apologise to the noble Lord for interrupting his flow. The Minister pointed out the difference in approach between planning and building regulations. We have heard, for instance, that certain things may not apply to social housing providers of one sort or another. Building regulations do not necessarily fall automatically within the purview of a local authority; they can be outsourced. Therefore, you can have any number of commercial companies who can provide the building control facility. The NHBC, for instance, is actually a certification process set up by—
Lord Ahmad of Wimbledon (Con)
I remind the noble Earl that we are at Report, and it is normal convention after the Minister just to hear from the mover of the amendment, unless there was a specific point of elucidation or clarification to be made. I feel that the noble Earl may be going into a more detailed exposition.
Lord Harris of Haringey
My Lords, I am sorry that the noble Earl has had the reprimand from the Front Bench. I was enjoying the to and fro, and would happily have answered him in detail. Of course other bodies are involved, but this enables the local authority, the elected local body, to have choice and impose when appropriate the standards that it thinks are appropriate at local level. That is what will be precluded by the Government’s approach.
The Minister talked about this proposal applying only to new developments. The point is, over time, all developments would be covered by these arrangements. That is how you get to the figures in terms of burglaries that one might be talking about. He said that it does not stop Secured by Design from bringing standards to the marketplace. But the problem is that he would not be able to require something if, at local level, local authorities thought that it was necessary. Planning law simply does not allow this to happen. I am afraid that somewhere, lost between the Department for Communities and Local Government and the Home Office, a very important principle has been destroyed—the principle that local councillors should be able to set a higher standard for security if they think that their local residents need it and crime prevention is necessary in that way.
For that reason, I wish to test the opinion of the House.
“Long-term police authorisation requiring independent approval
(1) The Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) After section 32A (authorisations requiring judicial approval) insert—
“32AA Long-term police authorisations requiring independent approval
(1) This section applies where a relevant person has granted a long-term authorisation under section 29.
(2) The authorisation is not to take effect until such time (if any) as the relevant independent body has made an order approving the grant of the authorisation.
(3) The relevant independent body may give approval under this section to the granting of an authorisation under section 29 if, and only if, the relevant independent body is satisfied that—
(a) at the time of the grant—(i) there were reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation, and(ii) the relevant conditions were satisfied in relation to that authorisation, and(b) at the time when the relevant independent body is considering the matter, there remain reasonable grounds for believing that the requirements of section 29(2), and any requirements imposed by virtue of section 29(7)(b) are satisfied in relation to that authorisation.(4) For the purposes of subsection (3), the relevant conditions in relation to a grant by an individual holding an office, rank or position in a relevant law enforcement agency are that—
(a) the individual was a designated person for the purposes of section 29,(b) the grant of an authorisation was not in breach of any prohibition imposed by virtue of section 29(7)(a) or any restriction imposed by virtue of section 30(3), and (c) any other conditions that may be provided for by the Secretary of State were satisfied.(5) In this section—
“relevant law enforcement authority” means—
(a) a police force in the United Kingdom, and(b) the National Crime Agency;“relevant judicial authority” means—
(a) in relation to England and Wales, the High Court of Justice in England and Wales,(b) in relation to Scotland, the Court of Session, and(c) in relation to Northern Ireland, the High Court of Justice in Northern Ireland;“relevant person” means—
(a) an individual holding an office, rank or position in a police force in the United Kingdom, and(b) an individual holding an office, rank or position in the National Crime Agency.(6) In this section—
“relevant independent body” must be defined by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted;
“long-term” must be defined by the Home Secretary in a motion passed by both Houses of Parliament before this section is enacted.””
Baroness Smith of Basildon (Lab)
My Lords, Amendment 92A, in the name of my noble friend Lord Rosser and myself, would make provision on “Long-term police authorisations requiring independent approval”—in other words, police authorisation for covert or undercover operations. The Minister knows of our concerns and interest in this issue, as we flagged it up at Second Reading and my noble friend Lord Rosser proposed a very similar amendment in Committee as well. I know that the Minister agrees with us that meaningful action has to be taken to address how covert police operations are authorised and managed, but it seems to us that the Bill provides the ideal opportunity to address the issue, given that it is the Government’s flagship Bill on crime and policing.
I welcome the Government’s recognition that there is an issue here. In his letter to my noble friend Lord Rosser on 21 December, the Minister outlines the powers that the Government are taking and have taken already, so the Government recognise that changes have to be made. I welcome those changes and do not decry them, but they do not go far enough in addressing the seriousness of the problem to provide the degree of oversight and monitoring that we feel is necessary. I do not think that it is enough to give guarantees or assurances if people are to have confidence that such operations are properly authorised and monitored when they are ongoing. I shall come on to explain the differences that we have.
I reiterate the point made by my noble friend Lord Rosser in Committee that we support undercover policing and recognise that it is essential in dealing with organised crime and terrorism. We recognise the dedication and bravery of those officers who undertake this work, but we can only repeat that such operations must be subject to the highest of ethical and operational standards. That is essential both for their operational effectiveness and for public confidence, which is why we place such store on getting accountability absolutely right in this area.
My noble friend gave two examples in Committee that drive home how those changes must be made and why action must be taken to address the problem that any suspected criminality must be dealt with proportionately and not in excess of what is required. I do not want to repeat what was said in Committee, but I shall outline those two cases briefly.
The first case is that of Mark Kennedy, known in his undercover name as Mark “Flash” Stone, who as a police officer infiltrated left-wing protest groups over a period of seven years. These groups were involved in lawful demonstrations—there is no evidence that they were involved in crime. In that role, he had relationships with women in the protest movement and travelled to eco protests across Europe.
When HMIC reviewed Mark Kennedy’s activities and those of other undercover officers, it stated that his actions led to the collapse of a trial of environmental protestors. The report said that he defied management instructions, but it was never clear what those management instructions were. Indeed, he took the view that his superiors knew what his activities were, so there seems to be a lack of clarification on whether his actions were authorised or whether he just thought that somebody knew about them so it was okay to behave in the way that he did. The HMIC report also suggested that an independent body should be required to authorise such undercover operations, as he had been inadequately supervised and the oversight had to be strengthened.
In such cases, we question not only the ethics of Mr Kennedy and others, but the proportionality of their actions and their cost. I do not know whether there has ever been an assessment of the costs involved in such cases, but clearly neither the costs nor the methods—the ethics—could be justified.
The other case referred to by my noble friend Lord Rosser involved the noble Baroness, Lady Lawrence of Clarendon, who is now a Member of your Lordships’ House. After her son was murdered in a racist attack, Peter Francis, who was then an undercover police officer and a member of the highly controversial special demonstrations squad, was part of an operation—Peter Francis said—to spy on and attempt to smear the Lawrence family. Those actions in all cases are totally unacceptable.
I also refer noble Lords to a book by Rob Evans and Paul Lewis, The True Story of Britain’s Secret Police, which illustrates the extent of the problems. There have been a number of cases in which women were conned by these men—seven police officers, acting under cover—into believing that they were having a genuine relationship. They had sexual relationships that in a number of cases led to children being born. It appears that those men, who had been acting under cover, shed their responsibility to their children as easily and as quickly as they shed their undercover identities.
I know that the Government have brought forward secondary legislation to deal with the issue through an order, which Damian Green in the other place said would enhance oversight. However, I have two concerns. First, I do not think that secondary legislation gives this House the opportunity fully to examine the proposals before it. It would have been helpful to have included any such proposals in the Bill, as we could then have had the opportunity to fully discuss whether the measures were appropriate. I think that the Government’s proposals go a long way towards dealing with the problem, so I welcome them, but they do not go far enough. We are not convinced that the Surveillance Commissioners are really the appropriate body to provide independent oversight.
Lord Condon (CB)
My Lords, I refer your Lordships to my registered interest in policing. I should also add that I was Metropolitan Police Commissioner for seven years and that embraced the time of the allegations the noble Baroness, Lady Smith, has referred to in relation to the noble Baroness, Lady Lawrence.
I have enormous sympathy for the reasons why the noble Baroness, Lady Smith, has moved this amendment. Clearly, change is needed and the balance has to be redrawn between the need for undercover policing to provide protection for the wider community and the avoidance of the abuses that have clearly taken place in the past.
As the noble Baroness, Lady Smith, has raised the issue of the noble Baroness, Lady Lawrence, perhaps I can place on record—fully aware of the consequences if I were to mislead your Lordships’ House—that at no time during my time as commissioner did I approve, authorise, acquiesce or have any knowledge of, or give any encouragement to, any of the actions suggested by Peter Francis in his book. Investigations are currently under way to try to establish the truth of all those matters. If I, as commissioner for seven years, had no knowledge of the sort of allegations that have been made by Peter Francis in his book—assuming that he has made those allegations on, hopefully, the basis of some element of truth—that shows that there is a need for reform and for much closer scrutiny of these operations. I am now in my 15th year of retirement so I am long past knowing what the current environment is like, but I still sense an enormous need and momentum for change, which is shared by the Government and the Opposition.
So, although I have enormous sympathy for the amendment moved by the noble Baroness, Lady Smith, I look to the Minister to say how the Government are responding to these issues. I sense that the Government are well and truly on this case, so I will listen to the Minister’s response before I make a judgment about whether or not I am able to support the amendment.
Lord Hope of Craighead (CB)
My Lords, I wish to raise a point on the wording of the amendment. Three definitions are set out in subsection (5), one of which is “relevant judicial authority”. I have no complaint about the definition itself, but I cannot find anywhere in the proposed new clause where that phrase is used and is in need of definition. I may be wrong. Obviously, this comes after a section where independent approval may be needed, but I would like to be persuaded that the definition in the subsection is relevant to the clause we are being invited to approve.
Baroness Jones of Moulsecoomb (GP)
My Lords, although I have not been involved in these cases, I have been involved in the examination of these kinds of cases when I was a member of a police authority in London for 12 years and I still sit on the police committee at City Hall.
Something like the amendment is absolutely necessary because, putting aside the civil rights, human rights and civil liberties of the women and the people involved in the environmental movement whose lives have been trespassed upon for no information and without subsequent charges against them—these were innocent women who were trespassed against—you have to think about the civil liberties and human rights of the police officers involved. Again and again, officers were embedded within environmental groups for long periods of time. It was not like getting into a drug cartel or organised crime of some kind; this was a quite different kind of policing. The police officers have suffered quite deeply afterwards. It is very easy when you are embedded for three months or six months to get to like the people you are working with and to understand what their motivation is, and many officers have come out of this quite damaged and unable to work any further.
There is also an argument about the cost of the court cases in which some of these police officers were involved—they went to court and were charged as protestors and were either convicted or not convicted—because those cases are now being overturned. Two cases will be coming up in the next two weeks in London on this issue. It is costing us a fortune and justice is not being done. We need an independent way of judging and assessing whether or not this kind of action is necessary. It is time that the Metropolitan Police understood how important this is and I hope that the Government will approve the amendment.
Baroness Hamwee (LD)
My Lords, we had the opportunity to consider the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013, which the Minister sent round after the previous debate and is now in force, as I understand it. Any of us could have prayed against it.
We need to understand as a House that we are not at the point in the development of this—“work” seems to be the wrong term—matter that one might think from looking at the amendment. That is not to say that I do not have sympathy with the amendment. One of the times when I was most shocked at work since becoming a Member of your Lordships’ House was on hearing recordings of the testimonies of women, and their families, who have been affected by activities under CHISRS. I remember the family of one woman saying, “We treated this man as our prospective son-in-law; we welcomed him into our family”. It was very moving.
That causes me to say that what matters more than anything—although I do not know how you deal with it other than by putting formal technical oversight in place—is a change in practice and culture. The police need to take that matter on board but you cannot write that into legislation in that way.
The 12-month period for approval before review is required seems on the long side and I look forward to the Minister explaining it to the House. As I say, we should have questioned some time ago—I am as much at fault as anyone—why 12 months was chosen, rather than six months or even three months.
Lord Taylor of Holbeach
My Lords, this has been a worthwhile debate, although we have discussed this matter before. As the noble Lords know, the statutory instrument has come into effect, so we are in a different regulatory regime from the one we were in when we discussed this in Committee. In no way do the Government endorse activities to which the attention of the House has been drawn in the speeches of noble Lords. I am grateful to the noble Baroness for tabling the amendment. I agree that covert techniques are sometimes necessary to protect the public from harm or to prevent or detect crime. I think all noble Lords will accept that. These techniques need, however, to be closely supervised and constantly reassessed to ensure that they are justified.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000. RIPA provides a strong set of safeguards. As I said in Committee, we have recently brought forward secondary legislation, further enhancing this oversight of undercover deployments by law enforcement agencies. The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into effect on 1 January 2014.
I was a little concerned that, in our debate last time, the noble Lord, Lord Rosser, might not have been aware of this order, so, following the debate in Committee, I wrote on 21 December 2013 to draw it to his attention and to that of the noble Baroness. As a negative instrument, there was the normal opportunity for the Opposition or any noble Lord to pray against the order, perhaps on the ground that its provisions fell short of what was needed. Unfortunately, however, it is a matter of record that no such step was taken. The order, which has now been in force for some three weeks, provides a number of additional safeguards to ensure that the technique is used only when it is just to do so. I will give some examples of what I mean.
First, law enforcement agencies must notify the Office of Surveillance Commissioners, all retired senior judges, of all undercover deployment by law enforcement officers. Secondly, an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner, who, I remind your Lordships, is someone who has held senior judicial office. It may be that the original deployment is not authorised for 12 months. Thereafter, if it is to be renewed at 12 months, a surveillance commissioner will be required to pre-approve all renewals for long-term deployments every 12 months.
In addition, we have increased the rank of authorising officer. Deployments of undercover law enforcement officers now need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent as well as by a surveillance commissioner. The seniority of those who are now required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. I hope I can reassure my noble friend Lady Hamwee that all authorisations are notified to the commissioners at the outset. They monitor the cases during their normal inspections. Each case is approved specifically after that 12-month interval. It reflects the existing legislation and implements the HMIC recommendation to increase oversight of long-term deployments. As I have said, deployments can be for shorter terms, but they still have to be notified to surveillance commissioners.
We believe that the new arrangements will create a regime that contains considerable safeguards while not hampering operational effectiveness. We should allow them to bed down and be given a chance to prove themselves. We will of course keep them under review. Given these recent changes, I do not believe that this amendment, well intentioned as it is, is required. I therefore invite the noble Baroness to withdraw it.
Baroness Smith of Basildon
Perhaps I should explain to the noble Baroness and the Minister why we did not pray against the order when it was laid. The order made changes that improved the position and it would have been rather churlish for us to say at that time, “We’re going to pray against this because it doesn’t go far enough”. The order has improved the position, but I have a serious issue with the 12-month period. I know that the Minister said that we should give the new regulations, which came into force on 1 January, the opportunity to bed down, but why not get it right first time? This legislation provides us with the opportunity to do so. I agree entirely with the noble Lord, Lord Condon, that it is about getting the balance right. A 12-month undercover operation is a long undercover operation. If there is no independent monitoring and approval before that 12-month period comes to end, a lot can happen. This amendment is about the integrity of the operation concerned and ensuring that nothing is going wrong. As the noble Baroness, Lady Jones, said, if the integrity of an operation is compromised, it can mean that a court case fails. We have seen that in other cases involving long-term covert operations. That is a very serious matter. Further, those who have been undercover have thought that activities were authorised when they had not been explicitly authorised. It goes back to authorisation by commission or omission—it seems to have been authorisation by omission in the cases of some undercover operators.
I take the point that the order represents an improvement, but the fact that 12 months can elapse before any further oversight or independent monitoring take place represents a serious error. For that reason, I hope that the Minister will understand why I feel the need to test the will of the House on this issue.
Lord Blair of Boughton
Lord Blair of Boughton
My Lords, I rise to speak to Amendment 92B but I will also address a different and very important matter which has arisen in recent correspondence with the Minister about this amendment. I have given notice to the Minister that I believe the matter may need to be discussed on Third Reading, which is why I am raising it now.
I turn first to the amendment. Noble Lords may recall that a longer amendment to this clause, then Clause 126, in the names of the noble Lord, Lord Condon, the noble Baroness, Lady Manningham-Buller, and myself, was discussed on 4 December last year. The noble Lord, Lord Condon, and I now return to the same issue in a much more restricted but still very significant way. The issue needs a certain amount of explanation and, as it is concerned with national security, it is not trivial. It is concerned to ensure that no one can be appointed to the post of Commissioner of Police for the Metropolis without being subjected to developed or equivalent security vetting. Its context is the whole of Clause 128, which, like its predecessor, deals with a complete innovation for British policing—the appointment of suitably qualified police chiefs from abroad to senior posts in policing in England and Wales.
I repeat what I said on the last occasion, that neither the noble Lord, Lord Condon, who will speak later, nor I have any objections in principle to the appointment of senior officers from abroad, notably those from Commonwealth countries, to UK police positions. To object would be hypocritical in that senior UK officers have reasonably often and recently commanded police forces in Commonwealth countries including Australia. However, we are concerned about the Met Commissioner.
Our original amendment arose because, however well meant, the measure appeared to raise a serious concern when it was applied to three very senior Metropolitan Police posts, namely those of the commissioner, the deputy commissioner and the assistant commissioner specialist operations, who are all deeply embedded in the national security structure of the United Kingdom. We therefore sought an explanation from the Minister of how this could occur when these postholders need to be security cleared to a very high level, known as developed vetting, a process difficult to achieve when it involves a foreign national.
I think that the Minister will recall that an interesting and at times somewhat unusual debate followed. The principal development was that in winding up he produced one surprise and one promise. The surprise was that the then Clause 126 referred only to the commissioner and to provincial chief constables but not to other metropolitan ranks, however senior. The promise was about vetting, the subject of today’s amendment. The Minister said:
“I reassure noble Lords that, whatever nationality restrictions are imposed, no appointment would be made by this or any future Home Secretary that would put national security at risk. We would always expect the successful candidate to undergo the appropriate vetting procedures. If an applicant cannot be vetted, they will not be appointed”.—[Official Report, 4/12/14; col. 328.]
The Minister agreed to write to me so I did not press the amendment but reserved the right to return to the matter at Report; and he did indeed write to me on 23 December, copying the letter to a number of other interested Members of your Lordships’ House. The letter absolutely confirmed what he had said in the debate about vetting in these terms:
“Turning to the substance of your concerns, as I indicated in the debate, there is no legal requirement for the Commissioner of the MPS or the chief constables of police forces outside London to be British citizens. However, we would always expect successful candidates to undergo the appropriate vetting procedures. There is no provision in legislation to say when this should be subject to developed vetting. A decision is made … on the type of information an individual will have access to. We would expect the Commissioner and chief constables to undergo developed vetting”.
As that is fairly clear, and given that the Minister indicated both on the Floor of the House and in correspondence that a successful conclusion to the developed vetting process would be required for such an appointment to the post of commissioner, I might be forgiven for hoping that the Minister would accept this amendment today. But no—he wrote to me last Friday to say that he would not. He will speak for himself, but he seems to have given three reasons. First, it would be inappropriate to have developed vetting on the face of the Bill in case the scheme should be renamed or its criteria changed. Secondly, he does not think it appropriate to single out the commissioner’s post alone for such a measure. Thirdly, he does not believe that primary legislation is where a level of vetting should be set out. I hope he will think that that is a fair summary of his position.
I believe that the Minister’s first objection is already covered by the amendment’s being drawn slightly wider to refer to “developed (or equivalent) … vetting”, to take into account a future change in nomenclature or, as I will come to shortly, a reliance on foreign vetting by certain friendly powers.
On the Minister’s second and third objections, this clause as a whole represents an entirely new departure for UK policing. In itself that is fine, but within this legislation sits one position of a different order to the rest, and the noble Lord, Lord Condon, and I believe that that needs to be recognised in the Bill. The commissioner’s responsibilities are of a completely different category to those of other chief constables. He or she sits close to the very heart of the UK’s national security apparatus. Appointed by Her Majesty the Queen, he or she is in overall charge of all national counterterrorism police activity. He or she sits in the Cabinet Office briefing room during national emergencies and has direct personal responsibility for the protection of the Queen, the Royal Family, the Prime Minister, other senior Ministers and some ambassadors to the UK.
When I first raised this matter with the Minister he remarked that no one had previously exposed concern about security issues—which, put another way round, means that the Home Office had not considered the difference between the duties of this postholder and those of other chief constables. I believe that not only consideration but action is necessary. If legislation allowing this post to be held by a foreign national is to be passed then surely the law should require—and it should be firmly in the Bill—that such an appointment should be subject to the very vetting which the Minister says it will.
I turn more briefly to my second point, which refers to something that may have to be addressed at Third Reading. The noble Lord’s same letter of 23 December contained another surprise, albeit one to which he had referred briefly but had not been able to confirm during the previous debate. The letter stated that there is,
“currently no requirement for candidates for appointment as Deputy or Assistant Commissioner to have served as a constable in the UK, so the changes made by clause 126 are not relevant so far as those posts are concerned”.
That was very surprising indeed to the four Members of your Lordships’ House who have been Metropolitan Police Commissioners and who were present at the debate on 4 December, and it is very surprising now. The deputy commissioner, also appointed by Her Majesty the Queen, is—as the phrase has it—a heartbeat away from being the commissioner, and has the same powers and responsibilities in the absence of the commissioner. But it gets worse. I have spoken to the current commissioner, Sir Bernard Hogan-Howe, and it appears that this situation now pertains to all of the 35 or 40 chief officers of the Metropolitan Police, of commander and deputy assistant commissioner rank as well as those more senior. None of them has to have any previous police experience. Both Sir Bernard and the president of the Association of Chief Police Officers, Sir Hugh Orde, regard this situation as totally untenable, as do I.
Senior police positions are not that different from any other significant professional position. If you, like me, would prefer the pilot of your aircraft or the brain surgeon to whom you have been referred to have some relevant experience, then perhaps you will understand why I have written to the Minister to ask him to do three things—to arrange for his officials to discover whether this position exists in law, not only in the Metropolitan Police but also to assistant and deputy chief constables outside London; to consult the Home Secretary and the Mayor of London; and to bring to the House a suitable new clause to rectify this anomaly at Third Reading. I have taken the liberty of suggesting to him a form of wording for a short new clause to address this.
It is not clear when the requirement to have served as a police officer beforehand ceased to be necessary for an appointment as a chief officer, but it has never been so important before. The replacement of police authorities by police and crime commissioners outside London and by the mayor’s office for policing in the capital has placed enormous patronage in the hands of individual politicians and the commanding officer, whom they appoint and can dismiss. I hope that the Minister will agree to the proposal to rectify this at Third Reading when he replies.
Returning now to the amendment, I should point out that this whole proposal is widely regarded within the police service as having been concerned with the desire in some quarters to appoint the widely respected former commissioner of the New York Police Department, Bill Bratton, as the Met Commissioner. Wherever that desire may have come from, it has been frustrated as he has just been reappointed to the NYPD and is no longer available. However, Bill Bratton, as I will make clear, is still relevant.
I said earlier that I would mention foreign vetting. In closing, perhaps I may offer one further piece of advice to the Minister. In his letter to me of 23 December he suggested that foreign vetting might be an alternative to developed vetting. He said:
“There is no bar to foreign citizens undergoing developed vetting, nor is there a requirement to have a British parent, but a 10 year residency is usually required.
The UK Government has a reciprocal agreement with Governments of some EU and NATO countries whereby we would recognise their vetting as being an equivalent to ours. Decisions will need to be made on a case by case basis”.
I am not so sure. If “case by case” includes Bill Bratton, I would advise the Minister not to rely on his example. After he was forced to resign from the NYPD in the 1990s, he was appointed chief of the Los Angeles police department. Shortly after his arrival, Bill Bratton appointed a Mr John Miller as his chief officer in charge of counterterrorism. To say the least, this was an unusual appointment—although only the kind of one that, unless we change things right across the command ranks of the Met, might happen here—in that John Miller’s previous role had been as head of press and public relations for the NYPD. Before that he had been a senior journalist with ABC News and was very well known for being the last American journalist to interview Osama bin Laden in 1998. In his new post in Los Angeles, it was necessary for Mr Miller to be vetted by the US authorities. When I visited John in his office in Los Angeles there was a prominent photograph on his wall of him with Osama bin Laden, taken during that interview. John told me that the photograph had been there when he had been visited by the FBI vetting officers to consider his suitability for such an important counterterrorism post. They had not asked about the photograph. His appointment was, however, approved. The moral of this story is that it may not be wise to rely on foreign vetting as an alternative to this amendment.
I hope the Minister will recognise that the amendment is designed to enshrine in law exactly what he has said on the Floor of this House and in correspondence. I hope he sees how important the issue is and that he will now accept the amendment. I beg to move.
Lord Marlesford (Con)
The noble Lord made an important point about it never having been the practice that somebody could be commissioner or hold a similar post without having been a police constable. Presumably when Lord Trenchard, formerly Marshal of the Royal Air Force, was appointed Commissioner of the Metropolitan Police, he had not had previous police experience.
Lord Blair of Boughton
The noble Lord makes a good point. It was only in the 1970s that the first commissioner who had been a police officer was appointed. Perhaps I should have said that in the past 45 years there has not been one. I certainly accept that the great and the good took those positions in earlier periods.
Lord Condon
My Lords, I added my name to the amendment broadly for the reasons that my noble friend Lord Blair set out. This issue is beginning to feel unnecessarily adversarial, and I do not think it needs to be. I hope that we will move rapidly to agreement. I certainly have no wish to block the appointment of an appropriate man or woman with experience in a foreign police force to the post of commissioner.
My point throughout has been only to draw to attention to the fact that, having been a chief constable and the commissioner, I know that in relation to national security and to the protection of Her Majesty, the line of succession and senior politicians, the posts are of a totally different magnitude. The commissioner holds a unique position at the centre of national security issues and in the protection of the monarch. My desire throughout has been simply to draw attention to that distinction and to ensure that if an overseas officer or someone with overseas police experience is appointed to the commissioner’s post in future, we will have taken due cognisance of the difference, the importance and the significance of the security roles et cetera.
I am sure that the Minister and his ministerial colleagues are well aware of the issue now and are seeking to find a form of words that will bring this matter to a satisfactory conclusion. I hope that it will not be necessary to go to a Division on this issue. If it were, I would probably feel the need to support my noble friend Lord Blair, but I hope that the Minister will say enough to reassure me.
Lord Hope of Craighead (CB)
My Lords, the Minister may recall that on a previous occasion, when this matter came up in relation to Clause 126, I spoke very briefly in support of the amendment that was then being proposed. The reason I spoke was because two Members of this House, who are not present this evening, made speeches which—to put it as gently as I can—cast doubt on the confidence one should have in the police. I got to my feet not because I agreed with them but because it seemed to me that there was an underlying issue that ought to be mentioned. It is public confidence. It may well be that, because of the very high profile of the posts we are talking about, particularly the post of commissioner, public confidence will be of the greatest importance. For that reason, which I hope the Minister will recall was discussed last time, I will make the same point again, this time in relation to this much more focused and, I hope, more helpful amendment.
Baroness Smith of Basildon
My Lords, I am sure that the Minister did not think I would pass up this opportunity. This is an interesting amendment. I was quite surprised to hear the noble Lord, Lord Blair, say that the Minister was going to resist the amendment, because when I read it, especially after our previous debate, I assumed, possibly wrongly, that it reflected what the Minister had said in previous debates and therefore set out the position for clarity in the Bill. Clearly, nobody in your Lordships’ House has criticised in any way the possibility of a police officer from overseas, suitably qualified, becoming a chief constable or the Commissioner of the Metropolitan Police. That is not at issue.
What is at issue is that they should be subject to the same conditions and rules as any member of the UK police force. I am surprised if the Minister does not think that there should be an explanation or guarantee of some form of appropriate security vetting, in the same place as the Bill says that a police officer from an approved overseas police force can be appointed. The change is being made in the Bill; I would have thought, therefore, that any qualification to that change should also be made in the Bill.
I entirely agree with the comments of the noble Lord, Lord Condon, and I hope that the Minister will be able to give some reassurance on this, and will take it away and come back at Third Reading with something that is appropriate and addresses the concerns that have been expressed. I do not think that it is unreasonable. The noble and learned Lord, Lord Hope, made a very strong point about public confidence. It serves public confidence well to understand that if a police officer comes from overseas, particularly in the role of commissioner, which is a counterterrorism role unlike any other chief constable role in the entire country, they will be subject to the same kind and level of vetting as any police officer taking the job from within the UK.
I hope that there has been some misunderstanding or error in the report that the Minister intends to resist the amendment. He has his piece of paper there; I hope it does not say that. I hope he will want to think again and come back. I think that he will have got a sense from your Lordships’ House that there is widespread support for what seems to be a very moderate clarification, and I hope that he can accept it.
Lord Taylor of Holbeach
My Lords, this has been a useful debate. I see this as an area of principle. I somewhat regret that the noble Lord, Lord Blair, addressed the issue ad hominem; I think that that was a little unnecessary. The Government take this matter seriously—and take his amendment seriously, too. As I said when responding to similar concerns in Committee, I agree that it is essential that those who are appointed as police officers undergo vetting appropriate to the role they are undertaking. I reinforce that view today. I am grateful to the noble Lord for reflecting on that debate and, in constructing his new amendment, taking the arguments I presented into consideration.
However, while vetting is vital, I do not believe that primary legislation is the place to set out the level of vetting. It is not the place where the level of vetting should be determined. Nor do I see the case for singling out just one chief officer post—namely that of Metropolitan Police Commissioner. As I said in Committee, no Home Secretary—also an appointee of Her Majesty—would make an appointment to the post of Metropolitan Police Commissioner that would put national security at risk. Furthermore, naming,
“developed (or equivalent) security vetting”,
as the requisite standard in primary legislation could be a hostage to fortune. Were the name or criteria for this type of vetting to change, this requirement could become outdated.
However, I have listened very carefully to the arguments that the noble Lord put forward, and there may be some merit in setting out vetting requirements in regulations. It is right for the College of Policing, as the body that sets the standards for policing, to take the lead role in considering whether to propose such regulations. As noble Lords will recall, Clause 111 makes statutory provision for its formal role in the preparation or approval of regulations. I will undertake to draw this matter to the attention of the college.
The noble Lord also highlighted the possibility that in a few years’ time we could find that all the chief officer equivalent posts in the Metropolitan Police, and indeed in other forces, could be filled by persons who have previously never served as a police officer in the UK. I have to say that such a possibility is, at best, theoretical, and I think that the noble Lord would admit that. Under the existing law, it could already be the case that every officer from commander through to deputy commissioner could be a person with no previous policing experience in the UK. That was not the case when the noble Lord, Lord Blair, was commissioner and, in practice, I see no possibility whatever of that happening in future.
We simply do not need legislation to preclude such a possibility. It has never been a legal requirement for the Deputy Commissioner of the Metropolitan Police or for deputy or assistant chief constables in other forces in England and Wales to have been a constable in the UK or a British national. As I indicated, these are not really matters for primary legislation; they are matters that the College of Policing may wish to advise on as matters for regulations—or they are matters that can be stipulated when a particular appointment is advertised. We remain of the view that an amendment to the Police Act 1996 is not required and, accordingly, I cannot undertake to bring forward a Third Reading amendment.
It will be for the Home Secretary to make decisions on the eligibility of applicants for appointment as Commissioner or Deputy Commissioner of the Metropolitan Police, and for the commissioner and chief constables in every other force to decide in relation to other senior posts. It is right that the Home Secretary and police chiefs should be trusted to decide who is best qualified and most appropriate to fill those roles. I cannot undertake to bring forward a Third Reading amendment on this issue, as I said.
I hope that the noble Lord, Lord Blair, will accept that the issues he has raised are not new. They would have arisen whether or not Clause 128 was in this Bill. He is right to raise these matters, but questions about the appropriate vetting of senior officers and about the relevant previous experience of such officers on appointment should not be a matter for primary legislation. However, I will draw this debate to the attention of the College of Policing. It may be that the college will come forward with regulations in future. Accordingly, I invite the noble Lord to withdraw his amendment.
Lord Blair of Boughton
My Lords, I thank all those who have spoken in this debate. I hope that the Minister did not think that I was being ad hominem about him as I certainly was not. In the circumstances of the Minister deciding to bring this to the attention of the College of Policing and asking it to consider what level of vetting should be required for the post of commissioner—if that is what he is saying—I shall, in a moment, ask leave to withdraw the amendment. However, I suggest to the Minister that the idea that a person could be appointed to a senior police position who has never previously been a police officer is pretty difficult to contemplate. I was never suggesting that all 35 would be like that as I cannot imagine anybody doing that. However, just the possibility that somebody who has never previously been a police officer could be appointed deputy chief constable seems to be a pretty odd state of affairs. Perhaps the Minister and I could talk about that outside the Chamber just to see whether that is not also something about which we could ask him specifically to ask the College of Policing. I beg leave to withdraw the amendment.
Lord Marlesford
“Littering from vehiclesCivil penalty for littering from vehicles
(1) A littering contravention in relation to a vehicle occurs when a person inside the vehicle acts in contravention of section 87 of the Environmental Protection Act 1990 (offence of leaving litter).
(2) A civil enforcement officer may impose a civil penalty if a littering contravention under subsection (1) has taken place.
(3) The registered keeper of the vehicle shall for the purposes of section 87 of the Environmental Protection Act 1990 be treated as knowingly causing the littering contravention whether or not he gave any instruction for this to be done and shall be the recipient for a civil penalty under subsection (2).
(4) A civil penalty is not payable under this section by the owner of a vehicle if that vehicle is—
(a) a public service vehicle, within the meaning of the Public Passenger Vehicles Act 1981;(b) a hackney carriage licensed under the Town Police Clauses Act 1847 or the Metropolitan Public Carriage Act 1869;(c) a vehicle licensed under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (licensing of private hire vehicles);and the person acting in contravention under this section is a passenger in that vehicle.(5) The amount of a civil penalty under subsection (2) is to be specified in regulations.
(6) The procedure for imposing a civil penalty on a person and for recovery of costs is to be set out in regulations.
(7) The regulations must, in particular, require the responsible authority to give the person written notice specifying—
(a) the amount of the penalty,(b) the reasons for imposing it, and(c) the date by which and manner in which it is to be paid.(8) Regulations may—
(a) give a person on whom a civil penalty is imposed a right to appeal against the decision to an adjudicator;(b) specify the grounds on which a person may request an appeal;(c) specify the time within which a person must request an appeal;(d) make provision for and in connection with the appointment of adjudicators;(e) make further provision about appeals (including provision as to the powers available on an appeal).(9) The registered keeper of the vehicle for the purposes of this section shall be taken to be the person in whose name the vehicle was registered under the Vehicle Excise and Registration Act 1994 at the time of the contravention.
(10) A civil enforcement officer under this section must be—
(a) an individual employed by the responsible authority, or(b) where the authority has made arrangements with any person for the purposes of this section, an individual employed by that person to act as a civil enforcement officer.(11) A vehicle for the purposes of this section is a motor vehicle as defined in section 185(1) of the Road Traffic Act 1988.”
Lord Marlesford (Con)
My Lords, I am bringing back as Amendment 93 on littering from vehicles an amendment that we discussed in Committee. I remind your Lordships of the need for the amendment, which was discussed very fully in Committee. It is a sad fact that Britain is a particularly dirty country in terms of litter. Not only do we compare very unfavourably with most of our peer group in Europe, we sadly compare unfavourably with a number of other countries that are much less privileged than us but make much more effort to see that there is not litter. The contribution to litter by people throwing litter out of vehicles is a serious and significant part of the problem of littering.
The purpose of my amendment is to close a loophole. Although littering from vehicles is a criminal offence, nothing can be done under the present law unless it is possible to identify exactly who threw the litter out of the vehicle. I am trying to supplement that arrangement—not replace it—by saying that if litter is thrown from a vehicle, then the keeper of that vehicle should be subject to a civil penalty on rather the same basis as a keeper of an unwisely parked vehicle is subject to a fine of £80 or so and it is up to them whether they recover it from the person who was driving the vehicle. It is a civil offence intended as a deterrent.
This argument has been put forward for a very long while by CPRE—perhaps I should declare an interest as having once been the national chairman of CPRE for five years—and the Keep Britain Tidy group. They are both very keen on it. I introduced a Private Member’s Bill earlier this year for the same purpose. Both that Bill and my amendment in Committee received widespread support—virtually universal support—in the House from the Back Benches and from the noble Baroness on the Labour Front Bench, whom I would particularly like to thank. It is not a party-political matter in any sense. It is purely a matter of being able to do something that will actually resolve the situation.
Obviously, the amendment has been around a long time, but I know that there have been differing views inside Whitehall as to whether it should happen. There tends to be an inclination by civil servants in one department to take up a position and be reluctant, perhaps, to change their position. This sometimes causes a problem, with Ministers having either to overrule them or to accept their advice. Life is busy and there is often an inclination to have a quiet life. I am afraid that this is too important for Ministers to have a quiet life over it.
I have had very constructive and helpful discussions with the Minister on several occasions since Committee. I had a final and very useful discussion on Thursday last week, at which he advised me that the Government accepted the principle of what I wanted to do, but rather than accept the amendment as such—and I quite understand this, because it is late in the day to accept the amendment or amend the amendment—they wanted to do it by taking powers to make an order to achieve the objective. The Minister has indicated to me that he will be doing that at Third Reading. He will be introducing to the Bill powers to make an order that will enable the issuing of a civil penalty for littering from vehicles where it is not possible for there to be a prosecution.
I do not disagree at all that in general littering should be a criminal offence. There are some very serious examples of littering—for example, fly-tipping and things such as that. Therefore, I am not in any sense divided from the Government by this. All that did divide us, but I think no longer does, is that there should be a supplementary provision for civil penalties, which will provide a deterrent for people who at the moment feel that they can perfectly happily and safely chuck stuff out of vehicles without anybody being able to do anything about it.
I am very aware that having a power to make an order is not of itself enough. What is needed is to make the order. I hope that the Minister will be able to assure me that the Government will be on the lookout to ensure that there is no “Yes Minister” scenario to delay matters. I experienced this once before on an amendment that I put forward to introduce an electronic firearms register. It took a very long time but it went through and worked extremely well, I am glad to say. There are other examples. I remember being involved in the Private Member’s Bill on the Parliament Square issue. Again, an awful lot of arguments were put forward as to why it could not and should not be done, but I think that your Lordships realise how much better Parliament Square is now than it was before without in any way having reduced the facilities for lobbying, which we all support. However, that is a quite different matter. I hope that my noble friend will ensure that the order is in place at the very latest by May 2015, a date of some relevance on the political calendar.
Finally, I was lucky enough at one time to have as a political master someone from whom I learnt an enormous amount—Ernest Marples. He was a brilliant Minister but he always had a great adage: “It is not what you say that matters; it is what you do”. With that, I beg to move.
Lord Sherbourne of Didsbury (Con)
My Lords, I support the motive behind the amendment of my noble friend Lord Marlesford. I think that everyone agrees that litter is a scourge and that it is getting worse. Were it not for the street cleaners, who are the unsung heroes of our local communities, we would realise how terrible is the amount of litter that is thrown and discarded. It is partly a matter of disfiguring the environment but it also poses a potential serious danger to other drivers on roads. Therefore, I hope that the Minister will give a very sympathetic response to my noble friend’s amendment.
Lord Deben (Con)
My Lords, having fought some of the battle with my noble friend and neighbour on this matter, I just wish to commend to your Lordships the constant pressure that my noble friend has brought to bear on this simple issue.
I draw just one thing to the attention of the Minister, who I understand is going to be extremely helpful: this is a symbol of trying to do the things that everybody wants done. The most frustrating thing in life is that there are many things which everybody wants done but which the Government always find impossible to do. I am afraid that the phrase “Better not, Minister” is one of the most dangerous that civil servants tend to use. Often, one should say, “Better to do things, Minister”. It is better to try and better to see whether we can solve this problem rather than have constant debates of this kind.
Therefore, if, as it appears, the Minister is going to be accommodating, I am sure that he will be accommodating quickly. That will show my noble friend Lord Marlesford that his pressure for sensible, moderate and reasonable changes in the law has again been successful, and I hope that your Lordships’ House will congratulate him on it.
Lord Cormack (Con)
My Lords, as one who spoke at the Second Reading of my noble friend’s admirable Bill, I want to say how much we appreciate his persistence in good causes. He did a very splendid job for five years as chairman of the CPRE and when he gave up that particular job he did not give up the interests that went with it: keeping a cleaner, tidier and more beautiful Britain. Having been a constituency MP, I know that when people indiscriminately chuck things out of the windows of their cars, some of the loveliest reaches of the countryside can be truly defaced.
My noble friend had a brief word with me before this debate and I am delighted to hear that the Minister has been—not at all surprisingly—both engaged and helpful in this cause. I hope that at the end of this debate we will have the confirmation in Hansard of that helpfulness and can go forward, make those people who despoil our country guilty of what they do and ensure that they are suitably reprimanded.
Lord Crickhowell (Con)
My Lords, I spoke on the last occasion that my noble friend brought this matter forward and I am delighted at the outcome. I add only one thing. I do not often put down Parliamentary Questions these days, but if I do not see an order appearing, I will put down Parliamentary Questions and will do so, if necessary, with increasing frequency as that memorable date in May 2015 approaches.
Baroness Smith of Basildon
I rise briefly, having supported the noble Lord, Lord Marlesford, when he raised this issue in Committee and at Second Reading. He is wise not to rely on the Private Member’s Bill route at present, since we have a number of Fridays when we are discussing just one Bill, which crowds out every other Bill that noble Lords wish to bring forward. I agree with the noble Lord, Lord Deben, about “Better not, Minister”, or “Better, Minister”. I think that the phrase in the “Yes Minister” series—which I heard myself as a Minister—was, “That’s very courageous, Minister”, which, from civil servants, is not praise. I hope that the Minister has not had to be too courageous in accepting the principle behind this amendment.
I want to raise a couple of thoughts, because this is a big issue. The cost to councils is enormous. I come from a generation that came home from school or from shopping with our hands stuffed full of any litter we had had during the day. Sadly, that is not always the case now. Sometimes the methods used are not entirely appropriate, although the problem has to be dealt with.
I have one concern. As I understand it, the Minister will bring forward an order-making power at Third Reading, but I take the comments from noble Lords opposite that we need assurance that the order will not be delayed and will be fairly swift. We all know how long orders can take. Given that they are unamendable—though they have to be consulted on—it should not take too long. If the Minister can give assurances or any guidelines on the timescale in which he expects to bring the order forward, that would be helpful. Otherwise, I am delighted with the news that the Minister accepts the principle of this amendment.
Lord Taylor of Holbeach
My Lords, I have sat listening to noble Lords’ expectations thinking, “No pressure, then”, so I hope that I do not disappoint noble Lords. I am grateful to my noble friend for bringing forward his amendment. All noble Lords share his concern about littering; indeed, as all who have spoken in this debate have said, it is anti-social, causes a nuisance, is an eyesore for the communities in which we live and can cause harm to the environment and, potentially, other road users. It is unacceptable behaviour and should be treated as such.
My noble friend describes his amendment as a simple measure to “fix” a problem. I have not heard the words quoted by my noble friend Lord Deben—“Better not, Minister”—in all my time, albeit brief, in ministerial office, although he of course had a longer time in office and perhaps had to deal with slightly more weighty matters than I have. When my colleagues who work with me on this Bill talk to me, they demand not “courage” or sensitivity to other considerations that they do not believe to be justified; I find them remarkably supportive and they have been very supportive on this measure.
Lord Crickhowell
In the light of what my noble friend said about the devolved Governments, will he undertake to draw the attention of those Administrations to what has been said in this debate and the action that the Government are now taking so that there is some hope that similar action will effectively be taken in the devolved countries?
Lord Taylor of Holbeach
I recognise the fact that my noble friend lives outside England, so he has an interest in making sure that those of us in this country do not all drive across the border—
Lord Taylor of Holbeach
It is even more pertinent to the issue he raises. I will, indeed, draw to the attention of the devolved authorities what we propose when Parliament has approved the Third Reading amendment that we are tabling.
I shall conclude by saying that I and my ministerial colleagues share my noble friend’s abhorrence of roadside litter and his deep distaste at the behaviour of those who carelessly discard things from their vehicle. We have already discussed at length the kind of problems that can arise if the law on this subject is difficult to interpret or enforce. I am sure that my noble friend agrees that we need to ensure that we get the legal detail right. I hope that my noble friend will withdraw his amendment and allow us to bring forward an alternative that will meet all our aspirations.
Lord Marlesford
My Lords, I am obviously extremely grateful to my noble friend for what he said. I am well aware that it involved the political elite of the country in coming to this conclusion, and I much appreciate the fact that my right honourable friend the Home Secretary is also in support and, indeed, my right honourable friend the Environment Secretary was involved. The answer is that it is wonderful that we are about to make a great step forward. As to where it applies, I will happily buy England only so as not to delay it and, indeed, perhaps it could become a minor or major issue on the future of Scotland. They can discuss what part they will play. In the light of what my noble friend so graciously and kindly said, I have pleasure in withdrawing my amendment.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
My Lords, I can be brief with the government amendments in this group. The substantive one is Amendment 96AC, which implements a recommendation made by the Delegated Powers and Regulatory Reform Committee in respect of a delegated power in the Bill’s provisions on child sexual exploitation at hotels. The committee recommended that the regulation-making power in Clause 132 should be subject to the affirmative procedure, given that it confers a power for the police to gather information about hotel guests and that there is nothing in the Bill to restrict the use that may be made of information provided to the police.
This power is already limited to the information that can be readily obtained from guests and does not impose a requirement on guests to provide the information. However, we are happy to accept the point made by the committee and place an additional safeguard on this power. The amendment to Clause 167 therefore ensures that regulations specifying additional categories of information should indeed be subject to the affirmative procedure. The other amendments in this group simply transfer these provisions to Part 9 of the Bill, which is a more appropriate home for them than Part 11. I beg to move.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
Lord Taylor of Holbeach
Lord Taylor of Holbeach
My Lords, Schedule 7 to the Terrorism Act 2000 is an important part of the UK’s counterterrorism strategy. The amendments to that schedule in the Bill were made in line with our ongoing commitment to ensure that respect for individual freedoms is balanced against reducing the threat of terrorism to the public here and to British interests overseas. We understand, even from our recent debates, that there remain aspects where we could go further in reforming the operation of the powers in Schedule 7. Let me set out the basis for the Government’s amendments in this group and I will then respond to the amendments in the names of the noble Lord, Lord Pannick, and my noble friend Lord Avebury when winding up the debate.
Amendments 93F and 93G, which relate to England and Wales and to Scotland respectively, clarify how the right to consult a solicitor as soon as reasonably practicable, privately and at any time, may be exercised by a person detained under Schedule 7 to the 2000 Act. These amendments make clear that a detained person who exercises the right to consult a solicitor may not be questioned until they have consulted a solicitor or no longer wish to do so. This is an important clarification and will put beyond doubt that examining officers must not question a detained person who has requested to consult a solicitor.
In the distinct context of a person detained at a port, an airport or an international rail station, consultation with a solicitor will ordinarily be by telephone, video call, text message or e-mail. The amendments provide that an examining officer may question a detained person who wishes to consult a solicitor if the officer reasonably believes that postponing the questioning would be likely to prejudice determination of whether the detained person appears to be a person concerned with the commission, preparation or instigation of acts of terrorism. That is unlikely, other than in circumstances where a detained person insists on speaking with a particular solicitor who remains unavailable set against the statutory time limit for conducting the examination.
The amendments also clarify that a detained person is entitled to consult a solicitor in person. This is an entitlement, not an absolute right. Where a person is detained at a port, an airport or an international rail station there may not be suitable facilities available for a personal consultation. These places are not police stations. If a detained person wishes to consult a solicitor in person, the examining officer will have to have regard to the facilities available for a private consultation and the time it will take for a solicitor to arrive at the port and to access the secure area where the person is detained. Where escort officers are available, and without detracting from the policing of the port, the examining officer may decide to transfer the detained person to a police station to facilitate a consultation in person, although that will extend the duration of the person’s detention.
Similar provision is made to allow an examining officer to question a detained person who asks to consult a solicitor in person. This might occur where the detained person insists on speaking in person with a particular solicitor and the time it would take for the solicitor to arrive at the port or the police station would consume a substantial portion of the limited time available for the examination. In that instance the officer may require the consultation to take place by telephone.
Lord Pannick (CB)
My Lords, Amendments 93A to 93D are in my name and the names of the noble Lord, Lord Lester of Herne Hill, the noble Baroness, Lady Kennedy of The Shaws, and the noble and learned Lord, Lord Hope of Craighead. They concern the power to detain people at ports and airports and the power to copy and retain their personal electronic data, and propose that these powers should be exercisable only if the officer reasonably suspects that the person concerned is involved or has been involved in acts of terrorism. Your Lordships will know that the application of the existing powers is currently the subject of litigation in the David Miranda case concerning the detention of the partner of a journalist on the Guardian newspaper, but I do not want to address the circumstances of that case. I want to focus on the principles.
I have no quarrel with the Bill recognising that the power to stop, question and search at a port or airport should be exercisable whether or not there is any reasonable suspicion. However, I believe that the more intrusive powers of detention of persons and retention of their electronic data must be subject to greater safeguards. The Joint Committee on Human Rights has so recommended in its very helpful reports, most recently in its ninth report, published on 6 January. The Terrorism Act 2000, which Schedule 8 to this Bill would amend, allows for detention without any need for the officer to have any suspicion, reasonable or otherwise. The Bill would allow for detention for questioning for up to six hours—a very substantial interference, on any view, with individual liberty.
The independent reviewer of terrorism legislation, Mr David Anderson QC, has stated that there should be greater protection for individuals before they are detained or their electronic data are copied. In his evidence to the Joint Committee, at paragraph 28 of the ninth report, Mr Anderson said:
“It is hard to think of any other circumstances in which such a strong power may be exercised on a no-suspicion basis”.
Indeed, the Joint Committee noted that the Government were unable to give any other examples of such intrusive powers being exercisable without a requirement of some kind for suspicion.
Mr Anderson concluded that the threshold should be subjective suspicion on the part of a senior officer. The Government have not brought forward an amendment to introduce even that limited test, but, in any event, I do not think that such a control would be adequate in the context of the detention of persons and the copying and retention of personal electronic data. As the Joint Committee concluded, a subjective suspicion threshold is no safeguard whatever. Simply to require that an officer in fact suspects provides no independent scrutiny of the officer’s reasoning. The development of administrative law over the past 40 years confirms that subjectively worded powers are simply incompatible with effective legal control.
It is true that Mr Anderson was not persuaded that an objective test of reasonable suspicion was appropriate in this context. Mr Anderson’s concern is that this would impose too great an interference with policing powers, especially having regard to the difficulty in identifying wrongdoers and the appalling devastation that terrorists can cause. Despite the genuine respect which I have for Mr Anderson, I think his conclusions on this subject are wrong. The concerns to which Mr Anderson rightly draws attention—the difficulties of detection and appalling consequences of failing to identify wrongdoers—are well understood by the courts. Such factors would inevitably and properly be given great weight by the courts when deciding whether there was reasonable suspicion to justify the detention.
The noble and learned Lord, Lord Hope of Craighead, spoke for the Appellate Committee of this House in addressing what a reasonable suspicion test means in the case of O’Hara v the Chief Constable of the RUC, 1997 Appeal Cases at 286. That was a case concerned with the police power to arrest a person who the officer has reasonable grounds for suspecting to be a terrorist. The noble and learned Lord, Lord Hope, emphasised that such a test required the court only to assess the information in the mind of the arresting officer at the time, whether based on his own observations or what he had been told by others, and whether or not the information he had in his mind at the time later turned out to be false.
If it is truly the case that the detention is not reasonable on the basis of what was known to the officer at the time of the detention, having regard to the difficulties in identifying terrorism and the appalling consequences of letting a terrorist go through, then detention should simply not occur.
When this matter was discussed in Committee, the noble Baroness, Lady Smith of Basildon, speaking from the Opposition Front Bench, referred to the difficulty in finding an appropriate balance in this context. I recognise the difficulty, but the House needs to confront it. Without a reasonable suspicion test the powers conferred by the Bill involve no balance at all. The powers provide inadequate protection for the citizen, inadequate encouragement to officers to maintain high standards and inadequate assurance to the public to promote the support on which effective policing depends, especially when we all know that these powers are used against black and ethnic minority individuals to a disproportionate extent compared with their numbers in the population.
Lord Lester of Herne Hill (LD)
My Lords, when I was young at the Bar, there was a High Court judge who used to make a habit when he was giving judgment of simply saying, “I agree”. Having heard the noble Lord, Lord Pannick, I am tempted just to say, “I agree”. However, I wish to add a few points which he has not made and which it may be appropriate for me to make at this stage.
First, perhaps I may record, as a member of the Joint Committee on Human Rights, our misfortune at having lost the noble Lord, Lord Faulks, as a recent powerful and distinguished member, and the good fortune of the Government in having him—now in a sedentary position, unfortunately—on the Front Bench.
Secondly, the Joint Committee on Human Rights recorded in its earlier report its welcome of the government amendments that the Minister has described. I simply echo our appreciation of the amendments that are before us now.
Thirdly, I do not wish to say anything about the pending Miranda case but I do not see that its outcome will in any way affect the Government’s decision on whether to accept this amendment as it is not the function of the court in that case to decide on a future scheme that better protects liberty.
Fourthly, there is another case pending in the European Court of Human Rights—the case of Malik—to which the Joint Committee referred in paragraph 108 of its fourth report. What we are now saying today will be read by the Strasbourg court in disposing of that case. One of the reasons I am adding to the speech of the noble Lord, Lord Pannick, is that I hope that the way in which the Government and the Official Opposition reply to this will be helpful to the Strasbourg court.
In the Malik case, there is a root and branch attack on the compatibility of the schedule with the European Convention on Human Rights. The Joint Committee on Human Rights has said that it has little doubt that that challenge will fail. There is nothing inherently incompatible between the schedule and the European Convention on Human Rights. However, as many lawyers will remember, there have been a whole series of cases in Strasbourg with names such as Klass against Germany and Malone against the United Kingdom where the Strasbourg court has said that it is necessary that there are adequate safeguards against the abuse of powers, including police powers. This amendment addresses the need for more adequate safeguards.
My view is the same as that of the noble Lord, Lord Pannick—indeed, I look forward to the speeches of the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Hope of Craighead—and probably all of us agree that there is a need for more effective safeguards against the possibility of abuse. An objective, reasonable standard seems to be the minimum that is now required. The Joint Committee has considered this twice—once in its original report and once in its most recent report—and came to the firm view that these safeguards are necessary. If the Government were to reject that opinion today, all I can say is that if I were in Strasbourg arguing for the Crown I would find myself in some difficulty because I am convinced that the Strasbourg court will scrutinise the reasons the Minister will give in deciding whether there are adequate safeguards. In other words, I think Mr Malik will lose but it would be a pyrrhic victory for the Government unless they were able to convince that court that there were adequate safeguards. I would rather avoid that today by putting the adequate safeguards into the Bill instead of waiting for another defeat in Strasbourg, in effect, and having to do it on a further occasion.
Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, support the amendment. I have had reservations about the use of the power to stop and search without having reasonable suspicion. I think it lends itself to a certain amount of abuse and undermines relations with minority communities. I know this because of cases that I have done and I have heard this point expressed frequently by families in those minority communities.
The amendment raises the issue of stopping and searching and then going further. It involves more intrusive powers than simply stopping and searching. Often stopping and searching is used—I think the House should know this—as a way of recruiting informants. It does not very often produce a case against anybody but it provides opportunities for those involved in the security services to have a word with young men and to see whether they are likely to be of assistance and might be recruited as informants.
The concern that we have with this amendment is about the facility that is open to the powers that be at the airports and ports and wherever people are stopped to take computers and clone their contents. That should involve some reasonable suspicion before it is done. We should be able to move to that higher threshold of an officer being able to justify why that is being done. It would be very rare that it would be done without some explanation by an officer as to why they had made the decision to retain the content of mobile phones or whatever it is. This is another of those steps of intruding into the lives of citizens. We should be very anxious that this is not done without officers knowing that they will have to give some account of why they have sought to do this. That is not expecting too much of those who are at the borders and who are providing us with this kind of protection.
That is why the amendment has been put together. We are talking about the next stage. I do not believe officers usually move to that next stage without their having reasonable suspicion and without therefore being able to give an explanation as to why they need the extra powers that are involved in this new legislation.
Lord Hope of Craighead
My Lords, I put down my name in support of this amendment for the purpose of drawing attention to a case decided by the Supreme Court in October 2013. It was not mentioned or discussed in the report of the Joint Committee on Human Rights, but it has a bearing on this issue in connection with the amendment moved by my noble friend Lord Pannick. Before I do that, I should like to express my appreciation of the amendments tabled by the Minister in relation to the protection of people who are detained and also the timetable which is set out in the amendments.
I had occasion to look at this very closely in a case from Scotland following on a decision by the European Court of Human Rights in Strasbourg in a case called Salduz. It is clear that the amendments which the Minister has tabled are necessary in order to meet the requirements of the convention for the protection of people who are detained, in particular the right to consult a solicitor. I appreciate the careful way in which that problem has been addressed.
As for the timetable, it is appropriate that this should be in the Bill. In 1980 a provision was introduced in Scotland to give the police the power to detain somebody prior to arrest. In that provision, the timetable was set out. It had to be amended in the light of recent developments following the case of Salduz, but again the timetable was in the Bill. I believe that, for the protection of the subject, that is where it should be, so I welcome the way in which these amendments have been framed.
In the Supreme Court, the case R v Gul was concerned with the definition of terrorism, which is set out in Section 1 of the relevant Act, and the concerns expressed about the breadth of it. Terrorism, as defined in that, has a succession of various acts. People’s perception of what amounts to terrorism can vary according to what their perception is of what is going on and where these activities are being conducted. It is not necessary to discuss that issue today, but it has a bearing on what may be passing through the mind of the port officer who has the power to detain and on the need for some protection of the subject because of the way in which that power may be exercised.
I should declare an interest as I participated in that judgment and was particularly concerned about this issue in our discussions. At the end of the judgment, in paragraph 64, the Supreme Court noted that,
“under Schedule 7 to the 2000 Act the power to stop, question and detain in port and at borders is left to the examining officer. The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting”,
which is of course the whole point to which the amendment draws attention. Although the court went on to add that it was not concerned with that issue in that appeal, the last sentence of the judgment reads:
“Detention of the kind provided for in the schedule represents the possibility of serious invasions of personal liberty”.
It is worth bearing in mind in support of the point that has been made that that has been a concern expressed by the Supreme Court in addition to others.
The noble Lord, Lord Pannick, was kind enough to mention what I said in the case of O’Hara, which was the first judgment I ever delivered in this House many years ago. The test which I set out, and which has been recognised, is not particularly exacting. It is partly subjective and partly objective. The subjective part is important because it looks only to what the officer says was passing through his mind at the time. The objective part is that somebody else stands back, takes what was passing through the officer’s mind at the time he was exercising his judgment and asks the question “Did that justify what he did?” That was how the power given to the police was expressed. It does not set a particularly high standard, but it is a protection. It is that protection which is absent at the moment and which I respectfully suggest is in need of being written into the Bill to meet the concerns that have been expressed by various people, including the Supreme Court.
Lord Lloyd of Berwick (CB)
My Lords, perhaps I could just have a brief word on Amendments 93A and 93B. There has been much discussion over the years as to whether the right to stop under Schedule 7 should be available only on reasonable suspicion. I am glad that the amendment now before the House does not go that far. The arguments in favour of and against the power to stop without reasonable suspicion are all very well set out in the excellent recent report of David Anderson, the reviewer. Unfortunately, that particular question was not included in the public consultation which took place in 2011. My view has always been in favour of the power to stop without reasonable suspicion. There is no real analogy with the power to stop under Section 44 of the Terrorism Act. But the power to detain—that is, the power to detain under paragraph 6(1)(b)—seems to me altogether different.
By the time that power is exercised, the person in question will have been questioned for up to an hour. All the benefits of the power to stop without suspicion, which I strongly believe in, particularly the deterrent effect of that power, will by then have accrued. Moreover, the examining officer will have had ample time during that hour to explore whether there are grounds for reasonable suspicion. The balance of arguments seems therefore to shift decisively in favour of reasonable suspicion being the test at that stage. For that reason, I support the amendment.
Perhaps I may say in passing how glad I am that the maximum period of detention has been reduced from 24 hours, as it was when I was considering these matters many years ago, to the six hours which is now proposed. That seems to me altogether admirable, as are the other amendments put forward by the Government.
Lord Avebury (LD)
My Lords, I also want to add a word in support of the amendment which was moved so comprehensively and powerfully by the noble Lord, Lord Pannick. I am disappointed that the Minister has not had time to make any observations about the two cases that I cited at an earlier stage. The first was where a distinguished imam was stopped at Heathrow Airport, made to give a DNA sample and fingerprints and detained for some time. It took me 15 months to get the DNA sample removed and his name expunged from the records. The second case was of a gentleman who was stopped three times within the space of months, indicating, to my serious concern, that there must exist a blacklist of people who are to be stopped when they pass through airports or sea ports. That is a very serious development on which I had hoped the Minister would be able to make some observations by now.
Amendment 94ZA in my name would delete the whole of new paragraph 11A from Schedule 7 to the Terrorism Act. That paragraph covers the power to take possession of anything that is found when a person is examined or searched at a port of entry, including not only electronic materials but papers, photographs, videos or audio cassettes, and to keep a copy of that material for as long as it is considered necessary for the purpose of determining whether a person falls within Section 40(1)(b); that is, that he is or has been concerned in the commission, preparation or instigation of acts of terrorism. It is clear that the vast majority of people who are held at the ports of entry have nothing to do with terrorism whatever. When this matter was discussed on 11 December, the Minister quoted the observation of the independent reviewer of terrorism legislation that,
“‘it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable’”.—[Official Report, 11/12/13; col. 813.]
However, that statement was not the whole story, as the Minister knows, and it was a little disingenuous of him to omit the rest of Mr Anderson’s comments in his evidence to the Home Affairs Select Committee on 20 November. He recommended that the power to copy and retain data from electronic devices should be exercisable only if a senior officer was satisfied that there were grounds for suspecting that the person appeared to be concerned in the commission, preparation or instigation of acts of terrorism. Mr Anderson went on to compare the indefinite retention of those data with the period of 48 hours that applies to the retention of documents copied under reasonable suspicion powers such as Section 43 of, and Schedule 5 to, the Terrorism Act 2000. He did say that electronic data can be held for very long periods under the management of police information regime, a practice that had recently been criticised by the courts and which is in marked contrast to the rules and guidance that exist under the Protection of Freedoms Act 2012. There should be some consistency between these different regimes while allowing a margin of appreciation in cases where there is a reasonable suspicion of terrorism.
Baroness Smith of Basildon
My Lords, as always on such issues, these are interesting debates, and I always note that I am one of the few non-lawyers to speak in them. Like the noble and learned Lord, Lord Hope, I put on record my thanks to the Government for their letter of 15 January in which the Minister explained the changes that were being made to the Bill—it should be understood that your Lordships’ House welcomes those. We concur with the Minister’s judgment about the David Miranda case and we, too, await the judicial review and any report from David Anderson. It may be helpful if we have a discussion once we have received that report.
The amendments before us today highlight issues of concern not just in the law but in the way in which the law may be implemented. However, as I said in Committee, we also take note of the comments of David Anderson as independent reviewer and we are not persuaded to support these amendments tonight. We would support further consideration of Amendment 93B if there were any further incidences of improper detention of citizens from Northern Ireland, but that consideration needs to take the form of a proper consultation involving the Department of Justice for Northern Ireland, the Irish Government as well as the Police Service of Northern Ireland. The PSNI has the unique task of policing a land border with the Republic of Ireland and it rightly requires additional powers to enable it to reduce border crime and prevent dissident attacks. We therefore cannot support Amendment 93B.
There is more work to be done on some of these issues. We certainly want to return to the Miranda judgment when it comes out.
Lord Lester of Herne Hill
The noble Baroness has explained that the Opposition are not able to support the amendments, but she has not explained why. Could she tell the House why the Opposition do not consider that a standard of reasonableness, in view of the severity of the sanctions, is appropriate?
Baroness Smith of Basildon
My Lords, we have two reasons. First if the noble reads my comments in Committee, he will see that we gave further information on that. Secondly, we take the view as outlined by David Anderson in his report, and we think that was a reasonable position to take.
Lord Taylor of Holbeach
My Lords, the noble Lord, Lord Pannick, my noble friend Lord Lester, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Kennedy, have all made very valuable speeches on this issue, addressing the fundamental principle of Schedule 7 to the Terrorism Act 2000 through their amendments: when a person may be detained and when their personal electronic devices may be examined.
I preface my remarks by noting that we continue to await the judgment of the High Court in the judicial review proceedings brought by Mr David Miranda, following his examination under Schedule 7 in August last year. Although the independent reviewer of terrorism legislation, David Anderson QC, who has been referred to several times in the debate, has made some recommendations in relation to Schedule 7, we will not have the benefit of his report on the detention of Mr Miranda and any further recommendations he may make until after the judgment is handed down. Consequently, the debate on Schedule 7 will continue beyond our proceedings today and beyond this Bill. I am certain that we will return to these matters in detail in the future. I am grateful to the noble Baroness, Lady Smith, for agreeing to this approach and I commit to keeping her informed of the Government’s approach to the issue.
Let me address the amendments before the House. I begin with Amendment 93B, which provides that a person “may not be detained” for examination,
“unless the examining officer has reasonable grounds to suspect”,
that the person is concerned with,
“the commission, preparation or instigation of acts of terrorism”.
The powers in Schedule 7 to the 2000 Act are for the purpose of determining whether a person appears to be someone who is or has been concerned with the commission, preparation or instigation of acts of terrorism. This is an examination of whether they appear to be. As I explained in Committee, examinations are not simply about the police talking to people they know, or already suspect, are involved in terrorism. They are about talking to people travelling to and from places where terrorist activity is taking place or emerging, to determine whether those individuals appear to be involved in terrorism—whether that is because they are or have been involved, will become involved or are at risk, either knowingly or unknowingly, of becoming involved.
The Government maintain the view that introducing a reasonable suspicion test for the exercise of powers under Schedule 7, both to detain individuals and to search electronic devices, would undermine the capability of the police to determine whether individuals passing through ports, airports and international rail stations appear to be involved in terrorism. That view is shared, as some noble Lords have commented, by the independent reviewer of terrorism legislation, who explained to the Home Affairs Select Committee:
“My exposure at a variety of ports to the operational constraints under which ports officers operate inclines me, on balance, towards rejecting the reasonable suspicion standard as a condition for detention”.
Mr Anderson highlights:
“Terrorists pose risks on a different scale to most other criminals: they have shown themselves capable of causing death and destruction on a massive scale”.
He adds:
“Active terrorists are not numerous, and not easily identified as such”,
and that a port environment suspicion may be,
“harder to substantiate objectively in the absence of specific intelligence”.
Those are important words, setting the background to the Government’s consideration of these matters.
I note that the Joint Committee on Human Rights accepts that, “the concerns which underpin” the independent reviewer’s,
“rejection of a reasonable suspicion standard are entirely justifiable concerns”.
For his part, the independent reviewer has recommended that detention be permitted only, and continue only, when an officer is satisfied that there are grounds for suspecting that the person appears to be concerned with terrorism. In Mr Anderson’s view, this represents,
“the maximum safeguards consistent with the continued productive operation of these vital powers”.
There have been two or three references to the discriminatory effect of these powers on ethnicity. Perhaps I should tackle this one. As the independent reviewer of terrorism legislation said, if the powers are operated properly, the ethnic breakdown of those examined will correspond not with the ethnic breakdown of the general population or the travelling population, but with the ethnic breakdown of those involved with terrorism. I believe we have to accept that.
The Government welcome the debate to find an appropriate threshold for the exercise of powers to detain individuals, and to make and retain a copy of electronic data under Schedule 7. However, in the specific context of port and border controls to determine whether individuals appear to be concerned with terrorism, reasonable grounds for suspicion is not an appropriate threshold. Ensuring an appropriate threshold that is clear in its meaning and provides an effective safeguard in its distinct context is a matter the Government continue to reconsider. We shall reflect further on the recommendation that the independent reviewer has made. However I am not persuaded that it would be right to introduce a test of reasonable suspicion, as Amendment 93B seeks to do.
The effect of Amendments 93A, 93C and 93D would be to restrict the duty of a person being questioned under Schedule 7 to disclose anything in relation to data stored on a personal electronic device unless they are detained. They also restrict the power of an examining officer to search things in relation to data stored on personal electronic devices unless the person being questioned is detained. I have tried to reassure my noble friend Lord Avebury that the power to search for and examine property, including personal electronic devices, is an essential part of the Schedule 7 powers. The independent reviewer observed—I make no apology for quoting him again—that,
“the Schedule 7 evidence which has assisted in the conviction of terrorists … consists of physical possessions or the contents of mobile phones, laptops and pen drives”.
These amendments are intended to complement Amendment 93B and to require reasonable grounds for suspicion to delay a person and consequently to examine their personal electronic devices. I have set out the Government’s position on the reasonable suspicion threshold.
The independent reviewer has recommended that the power under new paragraph 11A to Schedule 7—to make and retain copies of data from personal electronic devices—be exercised only if a senior officer is satisfied that there are grounds for suspecting that the person is concerned with terrorism. As with the threshold for detention, the Government are considering additional safeguards for examination of personal electronic data. We shall reflect further on this, both on the independent reviewer’s recommendation and alternative enhanced safeguards—for example, to provide for a review officer to approve any decision to examine data.
Lord Pannick (CB)
I am grateful to all noble Lords who spoke in favour of Amendments 93A to 93D. I am disappointed that neither the Minister nor the noble Baroness, Lady Smith of Basildon, accepts that those intrusive powers should be controlled by a reasonable suspicion test. For my part, I see no good reason why other terrorism powers are so constrained but that there would be problems in dealing with the matter in this way for detention at a port or airport.
I should add that, as the noble Lord, Lord Lester of Herne Hill, suggested, for the law to continue to allow for detention without a requirement for reasonable justification will inevitably lead to condemnation in the Strasbourg court. The noble Lord, Lord Faulks, whose elevation to the Front Bench is welcomed on all sides of the House, will no doubt be able to give the Minister confidential legal advice on the matter.
However, as the Minister said, the House will inevitably be returning to these issues in the light of the Miranda judgment and Mr Anderson’s consequent report. I shall therefore, in due course, not move Amendment 93A.
Lord Taylor of Holbeach
“( ) In paragraph 1(5) (definition of examining officer) for “paragraph” there is substituted “Schedule”.
( ) In paragraph 2(2)(d), the words “(within the meaning of that Schedule)” are omitted.”
“( ) After paragraph 7 there is inserted—
“7A (1) This paragraph applies where a person detained under Schedule 7 requests to consult a solicitor.
(2) The examining officer may not question the detained person under paragraph 2 or 3 of Schedule 7 until the person has consulted a solicitor (or no longer wishes to do so).
(3) Sub-paragraph (2) does not apply if the examining officer reasonably believes that postponing the questioning until then would be likely to prejudice determination of the relevant matters.
“(4) The powers given by paragraph 8 of Schedule 7 (search powers where a person is questioned under paragraph 2 of Schedule 7) may be used when questioning is postponed because of sub-paragraph (2).
(5) The detained person is entitled to consult a solicitor in person.
(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would be likely to prejudice determination of the relevant matters.
(7) In that case the examining officer may require any consultation to take place in another way.
(8) In this paragraph “the relevant matters” means the matters the examining officer seeks to determine under paragraph 2 or 3 of Schedule 7.””
“( ) After paragraph 16 there is inserted—
“16A (1) This paragraph applies where a person detained under Schedule 7 requests to consult a solicitor.
(2) The examining officer may not question the detained person under paragraph 2 or 3 of Schedule 7 until the person has consulted a solicitor (or no longer wishes to do so).
(3) Sub-paragraph (2) does not apply if the examining officer reasonably believes that postponing the questioning until then would be likely to prejudice determination of the relevant matters.
“(4) The powers given by paragraph 8 of Schedule 7 (search powers where a person is questioned under paragraph 2 of Schedule 7) may be used when questioning is postponed because of sub-paragraph (2).
(5) The detained person is entitled to consult a solicitor in person.
(6) Sub-paragraph (5) does not apply if the examining officer reasonably believes that the time it would take to consult a solicitor in person would be likely to prejudice determination of the relevant matters.
(7) In that case the examining officer may require any consultation to take place in another way.
(8) In this paragraph “the relevant matters” means the matters the examining officer seeks to determine under paragraph 2 or 3 of Schedule 7.””
“( ) in sub-paragraph (1), for “and” there is substituted “to”;”
“General requirements20K (1) A person’s detention under Schedule 7 must be periodically reviewed by a review officer.
(2) The first review must be carried out before the end of the period of one hour beginning with the person’s detention under that Schedule.
(3) Subsequent reviews must be carried out at intervals of not more than two hours.”
“( ) The Secretary of State must under paragraph 6 of Schedule 14 issue a code of practice about reviews under this Part of this Schedule.”
“Representations20L (1) Before determining whether to authorise a person’s continued detention, a review officer must give either of the following persons an opportunity to make representations about the detention—
(a) the detained person, or(b) a solicitor representing the detained person who is available at the time of the review.(2) Representations may be oral or written.
(3) A review officer may refuse to hear oral representations from the detained person if the officer considers that the detained person is unfit to make representations because of the detained person’s condition or behaviour.
Rights20M (1) Where a review officer authorises continued detention the officer must inform the detained person—
(a) of any of the detained person’s rights under paragraphs 6 and 7 which have not yet been exercised, and(b) if the exercise of any of those rights is being delayed in accordance with the provisions of paragraph 8, of the fact that it is being delayed.(2) Where a review of a person’s detention is being carried out at a time when the person’s exercise of a right under paragraph 6 or 7 is being delayed—
(a) the review officer must consider whether the reason or reasons for which the delay was authorised continue to subsist, and(b) if in the review officer’s opinion the reason or reasons have ceased to subsist, the review officer must inform the officer who authorised the delay of that opinion (unless the review officer was that officer).(3) In the application of this paragraph to Scotland, for the references to paragraphs 6, 7 and 8 substitute references to paragraph 16.
Record20N (1) A review officer carrying out a review must make a written record of the outcome of the review and of any of the following which apply—
(a) the fact that the officer is satisfied that continued detention is necessary for the purposes of exercising a power under paragraph 2 or 3 of Schedule 7,(b) the fact that the detained person has been informed as required under paragraph 20M(1),(c) the officer’s conclusion on the matter considered under paragraph 20M(2)(a), and(d) the fact that the officer has taken action under paragraph 20M(2)(b).(2) The review officer must inform the detained person whether the officer is authorising continued detention, and if so that the officer is satisfied that continued detention is necessary for the purposes of exercising a power under paragraph 2 or 3 of Schedule 7.
(3) Sub-paragraph (2) does not apply where the detained person is—
(a) incapable of understanding what is said,(b) violent or likely to become violent, or(c) in urgent need of medical attention.””
“Codes of practice(1) Schedule 14 to the Terrorism Act 2000 (exercise of powers—codes of practice etc) is amended as follows.
(2) In paragraph 1, after ““officer” means” there is inserted “(subject to paragraph 6A)”.
(3) After paragraph 6 there is inserted—
“6A In paragraphs 5 and 6, “officer” includes a constable, immigration officer or customs officer who—
(a) has functions under Schedule 7, or(b) has functions under Schedule 8 in relation to a person detained under Schedule 7,otherwise than as an examining officer.””
Lord Ahmad of Wimbledon
“(3A) This section applies to the Serious Fraud Office as it applies to the Crown Prosecution Service.””
Lord Ahmad of Wimbledon
My Lords, this is simply a drafting amendment to take into account the formal abolition of the Revenue and Customs Prosecution Office, which has already been merged with the Crown Prosecution Service. I beg to move.
Lord Ahmad of Wimbledon
“Jurisdiction of Investigatory Powers Tribunal over Surveillance Commissioners
(1) Section 91 of the Police Act 1997 (Surveillance Commissioners) is amended as follows.
(2) In subsection (10), for “sections 104 and 106” there is substituted “section 104”.
(3) After subsection (10) there is inserted—
“(11) Subsection (10) is not to be read as affecting the jurisdiction of the Tribunal conferred by section 65 of the Regulation of Investigatory Powers Act 2000 or section 23 of the Regulation of Investigatory Powers (Scotland) Act 2000.””
Lord Ahmad of Wimbledon
My Lords, this amendment simply clarifies the role of the Investigatory Powers Tribunal in considering complaints against decisions made against surveillance commissioners. The tribunal was established under the Regulation of Investigatory Powers Act 2000, commonly referred to as RIPA. When RIPA was introduced, Section 91(10) of the Police Act 1997 should have been amended to reflect the role of the Investigatory Powers Tribunal—the IPT—and its ability to consider complaints against the surveillance commissioners’ decision. It is believed that the lack of amendment at the time was an oversight.
The new clause is not intended to change the law in any way, but is rather a clarifying amendment reflecting the current state of the law. Given that the role of the IPT is clearly set out in both RIPA and the equivalent legislation in Scotland, the amendment is tabled solely to put the matter beyond any doubt. I beg to move.
Lord Deben
“Use of amplified noise equipment in vicinity of the Palace of Westminster
(1) The Police Reform and Social Responsibility Act 2011 is amended as follows.
(2) After section 142 there is inserted—
“142A Other controlled areas in vicinity of the Palace of Westminster
(1) For the purposes of this Part, the “Palace of Westminster controlled area” means the area of land in the City of Westminster that is comprised in—
(a) the highways in the postal district SW1 known as—(i) Bridge Street,(ii) St Margaret’s Street, and(iii) Abingdon Street,(b) so much of the highway in the postal district SW1 known as Great College Street as immediately adjoins Abingdon Street Garden, (c) Old Palace Yard,(d) Abingdon Street Garden (and its pathways), and(e) Victoria Tower Gardens.(2) In subsection (1)—
“Abingdon Street Garden” means the garden constructed on the sites of properties formerly known as 18 to 28 (both inclusive) Abingdon Street, London, SW1, together with the garden surrounding the adjoining Jewel Tower and the lawn surrounding the King George V Memorial;
“highway” has the same meaning as in the Highways Act 1980 (see section 328 of that Act);
“Old Palace Yard” includes the King George V Memorial.”
(3) In section 143 (prohibited activities in controlled area of Parliament Square)—
(a) in the title, at the end there is inserted “or in Palace of Westminster controlled area”, and(b) in subsection (2)(a) after “Parliament Square” there is inserted “or in the Palace of Westminster controlled area”.(4) In section 144 (directions under section 143: further provision), in subsection (5) after “Parliament Square” there is inserted “, or the Palace of Westminster controlled area,”.
(5) In section 145 (power to seize property)—
(a) in subsection (1) at the end there is inserted “in that area”,(b) after that subsection there is inserted—“(1A) A constable or authorised officer may seize and retain a prohibited item that is on any land in the Palace of Westminster controlled area if it appears to that constable or officer that the item is being, or has been, used in connection with the commission of an offence under section 143 in that area.”,
(c) in subsection (2) at the end there is inserted “in that area”,(d) after that subsection there is inserted—“(2A) A constable may seize and retain a prohibited item that is on any land outside of the Palace of Westminster controlled area if it appears to the constable that the item has been used in connection with the commission of an offence under section 143 in that area.”, and
(e) in subsection (8), for “subsections (1) and (2)” there is substituted “this section”.(6) In section 146 (power of court on conviction)—
(a) in subsection (1)(b) for “the controlled area of Parliament Square” there is substituted “a relevant area”,(b) in subsection (2) for “the controlled area of Parliament Square” there is substituted “a relevant area”, and(c) after that subsection there is inserted—“(2A) In this section “relevant area” means an area consisting of either or both of the following areas—
(a) the controlled area of Parliament Square, and(b) the Palace of Westminster controlled area.”(7) In section 147 (authorisation for operation of amplified noise equipment), in subsection (1)—
(a) after “Parliament Square” there is inserted “or the Palace of Westminster controlled area”, and(b) after “that land” there is inserted “(or any part of it)”.(8) In section 148 (meaning of “authorised officer” and “responsible authority”)—
(a) in subsection (2) after “Parliament Square” there is inserted “, or in relation to any land in the Palace of Westminster controlled area other than Royal Park land,”, and(b) after subsection (3) there is inserted—“(4) “Responsible authority”, in relation to any land in the Palace of Westminster controlled area, means—
(a) the Secretary of State, for any land comprised in Royal Park land;(b) Westminster City Council, for any other land.(5) In this section “Royal Park land” means any land of a description specified in Schedule 1 to the Royal Parks and Other Open Spaces Regulations 1997 (S.I. 1997/1639), as that Schedule has effect on the day on which the Anti-social Behaviour, Crime and Policing Act 2014 is passed.”
(9) In section 149 (effect of Part on byelaws), in subsection (3), after “Parliament Square” there is inserted “or the Palace of Westminster controlled area”.
(10) In the italic cross-heading before section 142, for “Garden and adjoining pavements” there is substituted “etc”.
(11) In the title of Part 3, for “Garden and surrounding area” there is substituted “etc”.”
Lord Deben (Con)
My Lords, this is an amendment which we discussed and withdrew at an earlier stage. It is what I might call a moderate amendment. It is an attempt to put right a problem of oversight rather than anything else. As was found earlier in the case of littering, your Lordships would be surprised at the complications which arise if you try to do what seemed to be a simple matter, which is to apply the rules that obtain in Parliament Square to the areas outside this House.
The reason for doing that was, first, that there is a real issue about the ability of those who have offices immediately opposite the King George statue when very loud amplification is used. Having raised the matter, I discovered that there was an even greater issue for those who were trying to have a service within Westminster Abbey. The sadness is that most of those who would be demonstrating would be very upset if they realised that their noise meant, for example, that the wedding day of someone who had looked forward to it, either in St Margaret’s or in Westminster Abbey, would be destroyed because it would be impossible to hear. A number of those who demonstrate have strong religious views themselves and would not want that.
Obviously, the best way in which one can avoid that is what might be called pre-notification. Indeed, that is to be encouraged, but we live in a democracy and it is right that people should protest. I would be the last person to seek to restrict protest wherever possible, because it is part of the whole fabric of a society in which human rights matter. Our debates on the Bill have been illuminated by lawyers and non-lawyers insisting that, however tough the threats to this country through terrorism may be, we must always be concerned to protect the rights of the individual.
This proposed new clause does not go very far: it simply extends the area covered by the present legislation, which has worked well. In preparing it we had discussions with various authorities which showed that, until now, the mechanisms by which the existing law has been enforced have been faulty. There have been difficulties in putting together the roles of the Royal Parks, which controls part of the area, and of Westminster City Council, the Metropolitan Police and the London Assembly, all of which have a say in this. It has therefore been very helpful to put the mechanisms on paper as we have before us today. I thank the Minister for the considerable efforts he has made to bring the various authorities together. We have concluded with those bodies that this is a sensible way forward.
There is a slight change from my original amendment in that Amendment 93R does not include putting up tents. This is because legislation already covers the only places where you could reasonably put up a tent; that is, the Acts and byelaws relating to the Royal Parks.
We have tried to make sure that we do not make anything onerous or push the matter any further than it need be. The amendment has the enthusiastic support of the dean of Westminster Abbey, and I think that most Members of this House have said that this is the proportionate way of proceeding. Some have wanted me to go further and have compulsory pre-advice when anyone was going to have a protest. There are temptations to do that, because it is a reasonable thing to ask for in most cases. But it is not always satisfactory and, in the end, I do not think that it is right to exclude the occasions when a gathering of people will grow and people will want to make a statement about something they feel strongly about.
This is the balance we need. It is a balance which has served the House of Commons perfectly well. This amendment merely ensures two things will happen in future. First, there will be every reason to give advice that a protest is to be held. That is good for sensible policing and providing information so that people know the law. There will also be every reason to stop what would otherwise happen, which is a migration of the kind of activity which has caused so much difficulty outside the House of Commons.
Your Lordships will see that a range of people supports this amendment. When we debated it before, it had widespread support. I have not yet been told of anyone who feels unhappy about it. I very much hope that your Lordships will agree that this is a sensible change supported by all those who have to implement the regulations. I beg to move.
Lord Taylor of Holbeach
My Lords, exceptionally, with the leave of the House, it might help if I speak at this early stage in the proceedings. I will explain the background to some of the discussions and reinforce the words of my noble friend Lord Deben in proposing his amendments. I will also set out the Government’s approach to the matter.
Following the debate in Committee, I met my noble friend Lord Deben, the Metropolitan Police, Westminster City Council, the Royal Parks and the receiver general of Westminster Abbey to discuss how we might more effectively address noise issues in the vicinity of the Palace of Westminster. The meeting confirmed the view I expressed in Committee, when we debated my noble friend’s amendments the first time, that there are already sufficient powers, including within existing Westminster City Council and Royal Parks byelaws, for the police, Westminster Council and the Royal Parks to deal with noise issues around the Palace of Westminster. From the Government’s perspective, the issue is not so much an absence powers, but the effective enforcement of the powers that are currently available.
It is true that there are some differences between the provisions that apply to Parliament Square under the Police Reform and Social Responsibility Act 2011, and those that apply to the area we are talking about here. For example, unlike the provisions of the 2011 Act, there is currently no pre-authorisation requirement for the use of amplified noise equipment in areas other than those covered by the Royal Parks Regulation. In addition, the offence under the 2011 Act attracts a higher maximum penalty of a £5,000 fine, compared with the Westminster City Council byelaws where the maximum fine is £500 and the Royal Parks byelaws where it is £200 or £1,000 depending on the offence. Your Lordships may take the view that a single set of harmonised controls in the vicinity of the Palace of Westminster might assist the enforcement agencies to deal with noise disruptions more effectively. However, the need for effective enforcement would remain.
Home Office officials and I would like to pay tribute to the public order team working on this issue. Home Office officials have worked with the Metropolitan Police, Westminster City Council and the Royal Parks to develop a robust enforcement plan for the current legislation. A joint protocol has been developed to deal with noise-related nuisance in the vicinity of Parliament. The key features of this protocol are that it sets out a clear process for dealing with noise issues around the Palace of Westminster; provides a single, adequately resourced contact number for complaints, which will be followed up; sets out a process for the police and Westminster City Council to liaise with protest organisers in advance and inform them of the legal position as regards the use of amplified noise equipment and their responsibilities; and sets out an agreed process for the police and Westminster City Council to work together to deal with noise issues arising from planned potential disruptive demonstrations. The enforcement agencies have also produced leaflets to ensure that people are aware of the legal position and their responsibility to minimise noise to allow others to carry on their normal business without serious disruption.
Earlier today, I met Deputy Assistant Commissioner de Brunner and Commander Dave Martin from the Metropolitan Police. They have assured me that the Palace of Westminster police will provide active support to Members of the House in dealing with noise issues. They have also assured me that the joint agency enforcement plan should effectively deal with noise issues in the vicinity of the House. We have agreed to review the situation in two months’ time to evaluate how the new enforcement plan is working.
As I have indicated, whatever the legislation in place, the key is effective enforcement. Noble Lords may consider that that objective would be better served by the adoption of these amendments. As for the Government, we have concluded that this is properly a matter for the House to determine and as such, if it came to a vote the Government will neither support nor oppose the amendments. My noble friend Lord Deben has made his case and no doubt others will want to contribute to this debate but, for once, I will not seek to be persuading noble Lords one way or the other.
The Lord Bishop of Ripon and Leeds
My Lords, I am very grateful to the noble Lord, Lord Deben, for the way in which he introduced this debate and to the Minister for those comments and his response. My colleague the right reverend Prelate the Bishop of Newcastle has added his name to this amendment, thereby expressing the concern of these Benches, in particular with regard to the work and worship at Westminster Abbey and St Margaret’s parish church. I am sorry that the right reverend Prelate the Bishop of Newcastle is unable to be with us today. However, it is a particular delight to welcome the very reverend Dean of Westminster, as he exercises his constitutional right to sit on the steps of the Throne of this House.
The Abbey has suffered, as the noble Lord, Lord Deben, was saying, as a result of what is often quite unintentional disturbance of its worship, and its role as a place of prayer and the worship of God. It is important to affirm absolutely both the right of protest, with the human rights which are involved in being able to protest, and, at the same time, the right and duty of the Abbey to maintain its pattern of prayer to God, particularly in view of the way in which it stands for the spiritual nature and concerns of this nation, and of our monarch and the Royal Family. Our daily prayers here with your Lordships stress particularly the needs of this realm and of the monarch. Westminster Abbey is a unique testimony to prayer for those needs, and there is a need at this point to ensure that the Abbey is able to fulfil that particular task which it has in the life of both the church and the nation. I support the amendment and am grateful to the Minister for his generous words about it.
Baroness Berridge (Con)
My Lords, I, too, support the amendment. Just hearing the outline of the different authorities involved when there are issues with protests outside the front of Parliament leads me to the view that without this amendment, enforcement has not perhaps been as easy as it could be. I take into account that Westminster Cathedral does not have this issue, merely by virtue of the fact that the Abbey and St Margaret’s are positioned outside Parliament.
We have done much hard work to ensure that the work of the House of Commons is not disturbed; we should afford the same privileges to the Abbey and St Margaret’s, which are in this unique position. Perhaps most persuasively, it is not just that there is worship there and wedding services. I am aware of this because I often cut through the Abbey’s yard. The young people being educated there and the people living there are, I am sure, also disturbed by the protests. This is a reasonable accommodation of the right to protest and the freedom of worship, while allowing people in their residential and educational roles to be uninhibited. I will be supporting the amendment.
Lord Rosser
The Minister has reminded us that when a very similar amendment was considered in Committee he, as the Minister, said that the issue was how the existing by-laws were enforced rather than that the existing powers were inadequate. It was in that context that he proposed holding the meeting to which he referred, and which has now been held. It would be of some interest if the Minister were in a position to tell us, in the light of that meeting, why on the face of it Westminster City Council and the police were not able to enforce the powers that he said were already there and were adequate to deal with the situation that we are addressing.
Presumably, Westminster City Council must have had something to say on that, as did the police, since they were present at the meeting which the Minister held. He said in Committee that he needed to satisfy himself that the existing provisions were not being enforced by the council and the police, so it would be helpful to know what those two bodies had to say when they were asked why the existing provisions were not being enforced.
I appreciate that the Minister has said that there are different penalties. He referred to penalties of £5,000 against the £500, I think, under the powers for Westminster City Council, and to differences over no pre-notification for noise. That does not fully explain why the existing by-laws were apparently not being enforced. It would be helpful if the Minister could comment on that.
Since the Minister said that it is his intention to leave it to the House, I would make just one other point. The Minister said in Committee—I use his own words—that we need to be,
“very careful about taking any action that may impact disproportionately on people’s right to protest and their freedom of speech”.—[Official Report, 25/11/13; col. 1215.]
How is the Minister satisfied that we are being careful about not taking any such action, since I assume that that matter will have been discussed at the meeting which was held and to which he referred?
Lord Taylor of Holbeach
I thank the noble Lord, Lord Rosser, for his general support for the steps that we have taken to try to resolve this issue. As I said, it is a matter for the House. The interests of those demonstrating are, I believe, best served by the facility of pre-booking a demonstration based on availability, which this protocol will provide for. It is not essential and there is no attempt to say that this will be the only way in which people can demonstrate. There is no imposition on people demonstrating, other than that they obey the requirements of the by-laws in respect of the noise made through amplified sound. This provision is made explicit by my noble friend Lord Deben’s amendment. Throughout, the right to demonstrate and to assemble has been seen as a key feature of what we consider to be proper here at this end of Parliament, as it is in respect of Parliament Square.
The noble Lord, Lord Rosser, also asked why the enforcement of noise by-laws has not been effective. The one thing which came out of our first, extremely productive, general meeting with everybody present was that people were in effect operating in their own little silos. If I explain that responsibility for the George V statue and the paved area in front of it lies with Westminster City Council while responsibility for the green part beyond it lies with the Royal Parks, your Lordships might understand that co-ordinating action was also difficult.
It was quite clear, too, that the police did not realise that one of the most frustrating elements was that those police serving the Palace’s interests were not engaged in any enforcement of noise requirements in respect of the area that we are talking about. The police recognised that while they had had a strong focus on provisions in Parliament Square, this area had not been considered by them to be an important priority.
The noble Lord, Lord Deben, was able through tabling his amendment at Committee to bring this to the attention not only of this House but also of the police and other authorities. As a result of that, the protocol, which I am certainly reassured will be an effective mechanism, provides an opportunity for safeguarding democratic rights and, at the same time, ensuring that enforcement can in fact occur. So I hope the noble Lord is satisfied.
Lord Deben
I thank the Minister for those comments. I hope very much that the House will agree that this is a sensible way forward. It has certainly already achieved a much better way of implementation. I hope therefore that we can go forward with this amendment.
Baroness Henig
“Amendments to the licensing regime for private security businesses
(1) Sections 42 and 43 of, and Schedule 1 to, the Crime and Security Act 2010 are repealed.
(2) The Private Security Industry Act 2001 is amended as follows.
(3) After section 4 there is inserted—
“4A Requirement to license businesses undertaking work for or on behalf of public authorities
(1) It shall be an offence for a business to engage in any licensable conduct except under and in accordance with a license.
(2) A business engages in licensable conduct if it—
(a) is contracted with a public authority, or(b) seeks contracts with a public authority,to undertake any of the activities contained in Schedule 2, or acts as a sub-contractor to another business which meets the criteria in paragraph (b) or (c).(3) In this section—
“a business” is defined as any body corporate, Scottish partnership or unincorporated association;
“public authority” is any person certain whose functions are functions of a public nature.
(4) The Authority may publish, under section 7(1), different criteria for businesses as to those it applies to individuals.
(5) The Authority shall—
(a) publish a code of conduct for licensed businesses to which licensed businesses shall be expected to adhere;(b) publish a list of sanctions for non-adherence by a licensed business to the code produced under subsection (5)(a) which may include, but is not limited to, fines, suspension of licence, withdrawal of licence and criminal prosecution;(c) impose sanctions from the list prepared under subsection (5)(b) to any business it deems to have breached or failed to comply with the code produced under subsection (5)(a).” (4) In section 11 (appeals in licensing matters), in subsection (1)—
(a) at the end of paragraph (b), delete “or”, and (b) at the end of paragraph (c), insert “or(d) sanctions are imposed on a licensed business under section 4C(5)(c).”(5) After section 22 there is inserted—
“22A Information relating to license holders
(1) Information held by any person for the purposes of, or for any purpose connected with, the exercise of functions under this Act—
(a) may be supplied to any other person for use for any such purpose, and (b) may be supplied to any person having functions in relation to—for use for the purposes of, or for any purpose connected with, those functions.(i) the enforcement of any other enactment applying to the operations of a licensed person or licensed business,(ii) offences committed by any person in connection with or by reason of their doing work to which this Act applies,for use for the purposes of, or for any purpose connected with, those functions.(2) Information relating to the operations or licensing of a licensed person or licensed business which is held by any person for the purposes of, or for any purpose connected with, such functions as are mentioned in subsection (1)(b) may be supplied to any person having functions under this Act for the purposes of, or for any purpose connected with, the exercise of those functions.
(3) Information supplied under subsection (2) by or on behalf of the Commissioners of Inland Revenue or the Commissioners of Customs and Excise must not be supplied by the recipient to any other person without the consent of the Commissioners concerned.
(4) This section—
(a) has effect notwithstanding any restriction on the disclosure of information imposed by any enactment or rule of law, and(b) does not limit the circumstances in which information may be used or supplied apart from this section.(5) In this section “enactment” means and Act of Parliament, an Act of the Scottish Parliament or any Northern Ireland legislation or any instrument made under or having effect by virtue of an Act of Parliament, an Act of the Scottish Parliament or any Northern Ireland legislation.
(6) References in this section to a person having functions of any description include references to any person providing, or employed in the provision of, services for that person in connection with those functions.””
Baroness Henig (Lab)
My Lords, in moving this amendment, I draw attention to my interests in policing and private security as set out in the Register of Lords’ Interests.
The Minister will no doubt be pleased to hear that this amendment represents my final attempt to introduce business licensing of companies engaged in the private security sector within the framework of the Anti-social Behaviour, Crime and Policing Bill. As he will be aware, the Bill constrains the form in which my amendment can be framed. As I will explain, however, it is still my belief that the goal of business licensing of companies working in the private security sector can be achieved more effectively in this way than by the alternative routes the Government are proposing.
There is almost complete agreement across the industry, and certainly in the Home Office, that the licensing of individuals working in private security has had a beneficial effect in driving up standards and increasing public confidence. Regulation has been a force for good, as the industry has argued, by marginalising criminality and giving confidence to the purchasers of security and to the general public that they will be contracting with properly vetted and properly trained workforces.
This is increasingly important as private security firms take on more and more responsibility for safeguarding public space and looking after sensitive national infrastructure. For three years now the industry has been arguing for business licensing to build on what has been achieved in the past decade and to provide effective regulation of a sector that plays such a vital role—and a rapidly expanding one—working alongside the police, in counterterrorism activities, and with a wide range of public agencies.
The reason that no progress has been made since 2010 is clear. Within the Department for Business, Innovation and Skills and the Cabinet Office there is a determination—one might say almost an ideological fixation—that no new undue burdens should be placed on businesses, regardless of considerations of public safety and public confidence, and of the benefits of combating the criminality that still lurks in the industry. Any regulatory changes, they insist, must be proportionate and targeted; and this part of the Government has yet to be convinced that the benefits of business licensing of private security companies will outweigh the costs and that it is really necessary.
This, I believe, is why the Home Office is proposing two possible alternative routes for progress in this matter; both, in my view, profoundly unsatisfactory. The first suggestion of the Home Office is to introduce business licensing of private security companies through secondary legislation. The disadvantage of this approach is that it cannot be enforced by a range of appropriate and effective sanctions. Regulation without enforcement is worse than the existing situation, because it plays into the hands of the unscrupulous and the downright criminal, and penalises conscientious and law-abiding businesses. The essential feature of regulation is that it must be effective. The industry has legitimate concerns, and has made its view clear, that business licensing introduced through secondary legislation cannot be effectively enforced.
The second Home Office proposal is to find an MP who comes high up in the annual ballot for Private Members’ Bills in 2014 to agree to introduce business licensing by this route. The cynicism of this suggestion takes my breath away. How many Private Members’ Bills ever make it over the many hurdles put in their way to the statute book? Is this the way to engage with an important industry that turns over up to £6 billion annually? The Home Office must know that without government support this route is extremely unlikely to yield any concrete result, yet blithely suggests that this is a credible option owing to its own inability to overcome the objections of the Department for Business, Innovation and Skills and the Cabinet Office and bring in primary legislation.
This is the dilemma that my amendment is aimed at resolving. What it seeks to do is to license, in the first instance, companies with contracts, or that are seeking contracts, to work alongside or with public authorities. That would almost certainly include all approved contractor scheme companies, which covers around 70% of those working in the sector. My amendment backs this up with a full range of enforcement powers and the ability to exchange information about those companies licensed across government and public agencies. The remainder of companies working in the private security sector—almost certainly the smaller companies and the one-man businesses the Government are so concerned to protect—could then be dealt with in a few months’ time by a second set of provisions. Indeed, secondary legislation might well be utilised here. I ask the Minister: would secondary legislation be possible to complete this process? If not, a small targeted Bill in the next Session could easily be taken through to license those companies that did not come into this first tranche of my proposals.
I can see merits in this two-stage approach, but I am aware—and I have to say this—that some industry leaders are worried about it on the grounds that it adds a layer of complexity to an already complex set of industry regulations. But all private security industry leaders want an effective range of sanctions to underpin regulation, and they also all want the effective exchange of information, which will not be secured by the routes the Government currently have in mind. If the Minister could give an assurance that a second stage of business licensing to cover those companies not covered by this amendment will follow relatively quickly, this would achieve the goal of business licensing of the private security sector more effectively than the alternatives the Home Office is proposing. Therefore, I hope the Minister will accept that I am trying to be extremely helpful.
Finally, subsection (1) of the proposed new clause repeals the clauses that have been on the statute book since 2010 and that were brought in to deal with the licensing of wheel-clamping businesses. They were dealt with by the coalition Government in a different way. Since that time the provisions have remained on the statute book, giving the confusing impression that business licensing is already in train. For the sake of clarity, therefore, these provisions need to be repealed. I beg to move.
Baroness Smith of Basildon
My Lords, your Lordships’ House should be grateful to the noble Baroness, Lady Henig, not only for the expertise that she brings to this issue—and she declares her interests in that—but for her commitment in ensuring that we get some proper regulation of the private security industry. It is something that the public want and it is something that the industry itself is looking for. I would hope that the Minister would accept this or bring something back.
I would be surprised if the Government are at all reluctant to have such regulation, given that the groundwork has already been done. Back in 2010, during the public bodies review, the Government announced their intention to have a,
“phased transition to a new regulatory regime”.
The work has been done by many of those bodies involved in this sector. I am told by the International Professional Security Association that despite,
“positive engagements between all parties and three years of hard work on all sides we remain disappointed that there is still no primary legislative vehicle confirmed as the most appropriate means to reform the regulator, introduce a scale of proportionate enforcement sanctions and establish a working gateway for information sharing between the regulator and HMRC”.
As my noble friend Lady Henig explained, there is confusion about the measures taken in the Crime and Security Act, particularly around wheel clamping. People think there is regulation when there is not.
I was quite surprised to receive information from the Security Industry Authority showing how vast the private security industry is. The scale is changing rapidly. The Government have a responsibility, given that the level of state reliance on private security services is very high. The public rightly expect high standards, but they perhaps also expect that, if standards fall below the required standard or if something goes wrong, something can be done and action can be taken to deal with that.
If we look at the scope of the private security industry, most days Members of your Lordships’ House will see members of the private security industry if we go shopping, fly from an airport or use public transport. They also support police activity and guard elements of our national infrastructure. The private security is also involved in magistrates’ courts and prisoner transfers. The Security Industry Authority now licenses more than 330,000 individuals. That does not cover all those working in the industry, but that is still about twice the number of police officers in the UK. It is clearly an area where there has to be efficient and effective regulation.
We are seeing the public increasingly coming into contact with the private security industry. They have a right to expect high standards from the industry, but they also expect government to take some responsibility, particularly when the private security industry is carrying out government functions. I mentioned the transfer of prisoners, and custody is another example. The consequences of a mistake—and mistakes happen in any environment—can be extremely serious and extremely high profile. I urge the Minister to accept this amendment. I think my noble friend has given us an opportunity and a way forward, and the Minister and the Government should perhaps consider the mix of primary legislation followed by secondary legislation in order to give the same effect.
My noble friend is quite right to reject the route of a Private Member’s Bill. I know that practically the only Private Member’s Bill we will be discussing in your Lordships’ House in the next year will be the European Union (Referendum) Bill. There are more Fridays put aside for that than I have ever known in your Lordships’ House. I am an admirer of Private Members’ Bills. I got my own Private Member’s Bill on to the statute book back in 1998 in the other place, but I recognise how unusual that is, and it was not as detailed or as comprehensive as the legislation we need for this.
Clearly, legislation is essential. I think my noble friend Lady Henig has given the Minister an opportunity to take this away, look at it and see what can be done in primary legislation and what can be followed up in secondary legislation, unless the Government can come back with some way of doing this very quickly in primary legislation. I know the work has been done, but I have to say to the Minister that if something were to go wrong because of a failure of regulation, it would be dreadful when we have the opportunity here and now to do something about it.
Lord Taylor of Holbeach
My Lords, I join the noble Baroness, Lady Henig, in her tributes to the security industry and to the Security Industry Authority. As the noble Baroness, Lady Smith, said, the noble Baroness, Lady Henig, brings expertise of this industry, but she also brings enthusiasm for its development, and I pay tribute to her for that.
As I said when we debated this issue in Committee, the Government are committed to reforming how the private security industry is regulated. In the future, the Security Industry Authority will regulate businesses undertaking prescribed activities before they are able to work in the security sector. This is an important measure as it will provide the SIA with a more efficient and effective means for regulating the security sector, improving standards and, most importantly, providing better tools for combating organised and serious criminal behaviour at corporate level.
The Government’s proposals have received strong industry support. Indeed, they have been supported by the noble Baronesses, Lady Henig and Lady Smith, this evening. While significant parts of the reforms can be delivered through secondary legislation, other aspects require primary legislation. The secondary legislation will be introduced as soon as possible, and the remaining proposals will be further refined once that work has been completed.
While I agree with the noble Baroness’s desire to see reform in this area, I do not believe that the amendment she has proposed for debate this evening takes the right approach. The scope of this proposed business regulation would be significantly narrower than either of the current provisions which would be removed by her amendment. This would reduce protection of the public by preventing the regulation of security provided in the private sector and would also remove the potential to extend to businesses providing their own in-house security eligibility for membership of the successful approved contractor scheme, which has around 760 member businesses.
The new business regulation regime that we are developing is designed around the use of Section 17 of the Private Security Industry Act 2001, which was amended by Section 43 of the Policing and Crime Act 2010. Amendment 94 would remove Section 43 of the 2010 Act and, in so doing, prevent the introduction of business regulation as currently envisaged. It is not our intention to undo the work that has been done to date, including during the noble Baroness’s tenure as chair of the SIA, and therefore we intend to retain the ability to establish a mandatory business approval scheme under Section 17.
It is not desirable to have a narrower scheme focused only on those private security firms delivering under contract to the public sector, because the private sector clients of such companies have just as much need for the protection which the Government’s proposals would afford. In addition, the existing individual licensing regime does not exclude the private sector, and it is our intention to reduce burdens and costs on those individuals through the introduction of business regulation across the industry.
The amendment would also insert a new Section 22A into the Private Security Industry Act. As the noble Baroness has explained, the intention is to enable the sharing of information for any purpose connected with the Act. While I agree with the intention of enabling information sharing, this must be considered as part of the overall reforms we are taking forward to ensure any provisions achieve this intention. So while I have some sympathy with this element of the amendment, I do not believe that this is the right way to go about it.
In conclusion, while I fully share the noble Baroness’s desire to make progress with the reforms to the security industry regulatory regime, I hope that, on reflection, she will agree that her scheme is not the most appropriate way forward—it is only a partial scheme—and that, accordingly, she will be prepared to withdraw her amendment.
Baroness Henig
My Lords, I have listened carefully to what the Minister has said. The first point I want to make is that, clearly, the Minister and those of us who are arguing for this are not divided on the end. We share the same goals; we are divided on the means to achieve those goals. The thing that has worried me particularly is the speed, or rather the lack of speed, with which the Government are moving forward on this. We have waited since 2010; we are now into 2014. This was all supposed to have been completed, I remind the Minister, by the end of 2013. I remember that he gave a pledge that it would all be completed by the end of 2013. We are now in January 2014 and the Minister is still using phrases such as, “as soon as possible”, “once completed” and “we aim to do this”. He has to acknowledge that the speed has been somewhat less than he would have liked. We know where the problems lie but it is this lack of speed that motivated me to put the focus on moving with urgency. What is actually happening is that, because of the slowness and what appears to be lack of action by the Government, we are losing the support of the industry.
The Minister will be aware that industry leaders are becoming increasingly frustrated by the lack of progress. Their concern is that if this is introduced through secondary legislation the situation could even be worse for companies than it is at present, because of the difficulty of enforcement under secondary legislation. I am concerned not to lose the support of the industry. It is so unusual to have nearly all the leaders of a big industry such as the private security industry united in wanting business licensing of companies that I do not want to lose that momentum. That is one reason I have brought forward a series of amendments to try to focus attention on this issue, and to explain why the industry is so concerned about it and why we need business licensing. However, I have listened to what the Minister has said and in the light of that, all we can do is wait. If he is not prepared to bring something back at the next stage, all I can do is hope that the primary legislation to which he referred will be with us sooner rather than later. On that note. I beg leave to withdraw my amendment.
Lord Berkeley
Lord Berkeley (Lab)
My Lords, I shall also speak to Amendments 94B, 94C and 94D. These are basically probing amendments. I apologise for not bringing them forward in Committee, but I think that the Bill was changed in the other place to add these amendments. Some of the amendments that were brought in in the other place are very good, but I am concerned about the resulting balance between what PCSOs can do to cyclists and what they can do to motorists. I am sure the Minister will agree that there has to be some balance in what they can do and the way they go about it. I speak as a cyclist. I hope that I am a law-abiding cyclist. I am also secretary of the All-Party Group on Cycling.
In general, I welcome the ability of PCSOs to hand out fixed penalty notices. It is a good idea but if they can do it to cyclists, they should be able to do it to motorists as well. My amendments are, frankly, just examples, because when one digs into the legislation—the various pieces of primary legislation and the regulations—it is a bit of a can of worms, as I am sure the Minister will agree, and it has been like that for many years. I hope that we can, at least, have a little debate about this tonight and maybe see what happens after that.
I was particularly concerned when I discovered that the Metropolitan Police has been targeting cyclists in a really rather unpleasant way. There is a memo that one of my cycling colleagues has seen which gave Metropolitan Police officers a target of putting penalties on 10 cyclists each in London. That is a very bad way of going about it. Was there a similar target of 10 motorists? I do not know, but we can see where that goes. Amendment 94A would make offences under Section 35 of the Road Traffic Act 1988, which concerns failure to comply with a traffic direction, apply to motorists as well as cycle riders. The Bill says it should apply to cycle riders and I am suggesting that, if a PCSO is capable of stopping a cyclist, he should be able to stop the driver of a vehicle.
We must all accept that there are fewer policemen around now than there used to be and that PCSOs add to their presence in the streets and encourage cyclists and motorists to obey the law. This allows PCSOs to stop cyclists and, I hope, vehicles. I think it is mainly to do with a survey, which may be important. I do not think it is the most important thing we are talking about in the Bill but, clearly, if a cyclist needs to take part in a survey, he should stop and do so.
Amendment 94B is very much more important. This is to do with advanced stop lines. I fear that this needs a longer explanation. I thought for many years that the first advanced stop line that you come to is advisory, if there are two with a box in between, the box being for cyclists. I discover that it is not advisory; it has the same force of law for motorists as the second one does. I shall say a little more about that in a minute. There is also a rather odd piece of legislation about the box between the first and second advanced stop lines. There is often an entry for cyclists on the left of the box as they go into it. Apparently examples have come up in London when a cyclist wants to make use of the box—which, after all, is there to provide visibility for cyclists.
It has been the case for many years that visibility is the most important thing and lack of visibility has probably contributed to much of the sharp rise in cycling fatalities in London this year. A lot of good work has been done to try to make cyclists more visible, but one of the most important things is the box, whereby drivers can see the cyclist in the box. However, apparently there is an anomaly if one is at a stop line and a cyclist wants to turn right. Normally, the cyclist might have got into the right hand lane of the traffic before he reached the stop line, would then stop until the lights turned green, and then go forward and turn right when it was safe to do so. Apparently, the only legal way of entering this box is up that little lane on the left, which means that the cyclist has not crossed the full line—he crosses the dotted line to get into the box, then he has to go across one, two or occasionally three lanes of, one hopes, stopped traffic, to get into the right-hand side to turn right. I hope that I am not confusing your Lordships too much. It is a problem when cars do not stop at the first line. Then the cyclist wants to go further ahead to be seen, and then he is crossing the second line, maybe, and he gets stopped by the police and fined—and he will get stopped by the PCSOs in future.
Lord Rosser
The amendments proposed by my noble friend Lord Berkeley, which he says are probing amendments, seek to extend the powers available for designation to PCSOs. We debated the issue of the powers of PCSOs in Committee in the light of a government amendment extending their powers. It is hardly a surprise that we now have an amendment which, on the face of it, wants to go further.
In his response to the debate in Committee on 11 December, the Minister said that it was,
“right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed”.—[Official Report, 11/12/13; col. 822.]
He also referred to a police and crime commissioner who had indicated a desire to see PCSOs tackling traffic offences. If the Minister accepts that my noble friend’s amendments on PCSOs’ powers go beyond those proposed in the Government’s amendments, agreed on 11 December 2013, but is not going to accept my noble friend’s amendments, can he say why, before Christmas, on 11 December 2013, he felt it right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed but on 20 January, after Christmas, he does not?
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord Berkeley, for his amendments. I suppose there was a general answer when he was talking about dotted lines and straight lines. I was told from a very young age that whenever you crossed the line, it was not the right thing to do. That is something all should keep in perspective when looking at these issues. The noble Lord spoke to the subject in his amendments with a great deal of expertise and insight. I fully acknowledge his work as president of the Road Danger Reduction Forum and as vice-president of the Cycling Touring Club.
The noble Lord’s Amendment 94D would mandate that all PCSOs must undergo a cycle training course before a chief constable designates cycle-related powers. We recognise that, as a result of these changes, additional training will be required to ensure PCSOs have the right knowledge, skills and expertise to exercise these powers. We do not agree that this should be mandated specifically by Whitehall, but we are confident that the police and the College of Policing are best placed to deliver this. I will bring this to their attention. The noble Lord was speaking with insight and I am quite happy to facilitate a meeting with the Roads Minister to see how we could talk about these subjects in terms of their wider application. I think he would agree, from his personal experience as a cyclist—and an avid cyclist at that—that across Britain and in our cities as well we are going through an evolutionary change on cycling. There is a ready acceptance now that cycling is something that is to be encouraged as part of the transport mix. When you go to cities such as Cambridge, for example, you actually see how it operates more effectively than in other parts of Britain. We need to share good practice across the country.
I now turn to Amendment 94C regarding the updating of regulations. The Department for Transport has consulted on the simplification of the current regulations with groups including the police. Revising these will form part of their ongoing work on the red tape challenge. Granting PCSOs the power to enforce regulations on cycling without lights will have a real impact on improving the visibility of cyclists and will help prevent road traffic accidents. The noble Lord acknowledged this himself in speaking to his amendments. That is why we believe that delaying the introduction of this power until after the regulations are updated would not achieve our objective of improving the safety of cyclists and other road users as quickly as we want to. His point about the pedals on cycles is well made. I remember years ago passing the cycling proficiency test and there were certain things which were “dos” and “don’ts”. He is correct in saying that many cycles now in Britain do not have reflectors and there is a need for those regulations to be updated. His point of raising these issues with manufacturers is also well made and noted.
Amendments 94A and 94B seek to grant PCSOs the power to issue motorists with a fixed-penalty notice for failing to comply with traffic directions and for failing to comply with advance stop sign regulations. We recognise that PCSOs have a key part to play in tackling issues around road safety and have consulted with the police and other key stakeholders on this matter as part of our ongoing work to explore the development of the role and powers of PCSOs. I am grateful to the noble Lord for suggesting these further enhancements to PCSO powers and I will certainly take his suggestions away to consider them as part of the wider work on reviewing PCSO powers that is already taking place. However, we want to understand fully the implications for PCSOs, the police and the public and until we have completed that further work I think it would be premature to make these changes at this time. I am aware that there is some concern that our proposals will result in cyclists being picked on by PCSOs. Let me assure the noble Lord that that is clearly not our intention. The powers in the Bill are not new, as a police officer can already exercise them. Just as police officers use their discretion, we expect that PCSOs will also do so.
Perhaps I may pick up on a couple of points made by the noble Lord, Lord Rosser. Of course, the extension of these new powers is very much in the hands of the chief constable. PCSOs have 20 standard powers and another 22 discretionary powers. These changes bring a further 19 discretionary powers. It is really down to the chief constable to make the decision from an operational perspective as to what powers should be extended to PCSOs. We believe that is the right thing to do. We know that the public really value the role PCSOs play in tackling low-level crime and anti-social behaviour and we believe that this package of measures will ensure that they can continue to play a key part in providing the best service to the communities they serve. Given these reasons and, I hope, the assurances I have given to the noble Lord that we will continue to consider the points he has raised and the powers available to PCSOs, I hope the noble Lord will feel able to withdraw his amendment.
Lord Berkeley
I am grateful to my noble friend Lord Rosser for his support and to the Minister for his very helpful reply. I did not really expect the amendments to be accepted as they are today at this comparatively late stage. It is good that the Department for Transport is looking at these things and it would be useful to have a meeting with the Roads Minister. I hope that the Minister has an assurance from the Department for Transport that the amendments which were put in at a previous stage are also part of this integrated policy, because if not, there could be some trouble in the future. But I am sure he has and I am grateful for what he said. I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I will speak at the same time to Amendments 94DB to 94DF inclusive. These are all connected to Part 12 of the Bill concerning extradition.
I will briefly summarise what appears to be a slightly technical and arid set of amendments, but which would nevertheless have a very significant impact. They would restore to individuals arrested under an extradition warrant the automatic right of appeal which currently exists—an automatic right which the Government are proposing to remove under the terms of this Bill. Let me make it absolutely clear that these amendments do not somehow let individuals off the hook who are arrested under an extradition warrant. They merely preserve the right that those individuals enjoy at present. Noble Lords will probably be aware from the briefings they have received that these amendments are supported inter alia by Fair Trials International, of which I need to remind the House that I am a trustee, by Liberty and by Justice.
I will now set that summary in context. First, my particular concern is the impact of the Government’s proposal on those arrested under what is known as a Part 1 warrant—more familiarly, the European arrest warrant—because of the very short timetable of EAW proceedings. Secondly, I want to make it clear that this is not an attack on the EAW generally. The EAW has enabled many very nasty criminals—terrorists and the like—to be speedily brought back or sent back to face justice. That is as it should be. Thirdly, and quite understandably, this Government—and, indeed, the previous Government—focus on these very high-profile cases, but the vast majority of cases do not involve matters of high importance.
In the last year for which records are available, there were 1,438 arrests under the EAW and 1,057 surrenders. For the most part, these involve ordinary members of the public for whom this will be an entirely strange and unfamiliar process and one which they are not well equipped to challenge. Some of them will have been arrested for crimes which they did not commit. Therefore, it is on behalf of these people—Edmund Burke’s “little platoons”—that I have tabled these amendments and ask for the House’s support today.
I shall be fair to the Government and my noble friend on the Front Bench. The Government asked Sir Scott Baker to review the operation of this country’s extradition arrangements and they have implemented a great many of his recommendations. Further, as part of the Lisbon opt-out, opt-back-in procedure, the Government have indicated a number of further changes. For example, they expect much less use in future of the EAW for trivial crimes and that greater efforts will be made to ensure that cases are trial-ready before the surrendering of individuals takes place. Those are indeed welcome changes and I congratulate the Government on making them. However, while increasing these protections, the Government are proposing to remove one great protection—that of the automatic right of appeal.
I hope that the House will forgive me if I remind noble Lords of two particular aspects. The first, as regards the EAW, is just how compressed the process of surrender is. An arrest will be followed by a court hearing at Westminster magistrates’ court within 48 hours. The accused will be represented by a duty solicitor who may or may not know anything about extradition. Edward Grange, a specialist extradition solicitor, has explained:
“At present there are over 400 individual solicitors signed up to the extradition rota at Westminster Magistrates’ Court. The majority of individual solicitors have never had conduct of an extradition case before and yet these are the solicitors that are entrusted to provide appropriate advice and assistance to those arrested on extradition warrants. The Extradition Act 2003 is complex and the case law it has generated is vast”.
A further hearing after that initial hearing will follow within 21 days, so that in as little as 35 days a person can be on his way to another jurisdiction, many of which will be operating with entirely unfamiliar procedures and conducted in a language which the accused probably does not understand at all.
Further, it is worth while remembering that, if the person wishes to appeal, he has in any case to make that appeal within seven days. I ask noble Lords to imagine the case of an unsophisticated person remanded in prison. His first legal representative, it turns out, knows nothing about extradition, so he has to make a change. He has to gather evidence, probably from at least two jurisdictions, perhaps involving many people, and put all that together into a case, and he has to do so within seven days while he is confined to prison. So much for the specifics of the compression of the EAW procedure.
The second point is the catastrophic impact that extradition can have on an individual—on his family, on his home, on his employment and indeed on his whole life. I shall not weary the House today with quotations from people who have been involved in these cases, but the stories of how people’s lives have been turned upside down by mis-arrests and an inability to get the appropriate advice and help are truly horrifying. The step of a state arresting one of its own citizens and handing him or her over to another state to try is a very fundamental one. It needs to have a proper level of safeguards. That is why I have tabled these amendments today and why I think they are so important.
If I could look over the shoulder of my noble friend on the Front Bench and glance at his speaking notes, what do I think I would see there as the Government’s wish behind the policy of removing the automatic right of appeal? I think the first thing would be that they were doing so because Sir Scott Baker recommended its abolition due to what he saw as a large number of unmeritorious appeals. However, the world has moved on since Sit Scott Baker undertook his review. First, the safeguards introduced by the Government, as I referred to earlier, through their amendments to the 2003 Act will now give weight to arguments which may previously have been deemed to be without merit due to the lack of a legislative basis. Therefore, it is likely that these reforms will reduce the number of unmeritorious appeals reaching the High Court. Further, the Government have introduced a requirement in Clause 145 of this Bill for the National Crime Agency to review extradition requests and sift out cases where it is clear that a judge would be required to order a person’s discharge on the basis that extradition would be disproportionate. Taken together, those steps will certainly mean a substantial reduction in the number of EAW cases.
It is important to remember that, while Sir Scott Baker recommended that the automatic right of appeal should be removed, as a compensating factor he also recommended that the time in which an appeal could be launched should increase from seven to 14 days to match the period that exists for a Part 2 warrant. I tabled an amendment to that effect in Committee. Subsequent to that, and after discussions with my noble friend on the Front Bench, I reflected and concluded that the longer the appeal period, the more the well resourced “nasty” case could take advantage of these delays to frustrate the underlying purpose of the EAW. Therefore, I have not retabled that amendment, which we discussed in Committee on 11 December. Instead, I argue for the preservation of the status quo as regards appeal. I shall not try to pretend to the House that I understand the details of how the appeal process works but the groups with which I have consulted over this matter understand the details and have written to me to say:
“Our review of the judgments of the High Court in extradition appeals … demonstrates that judges are able to dispose of appeals based on weak arguments in an efficient manner which prevents significant court time from being spent on unsuccessful appeals”.
In conclusion, while I congratulate the Government on the changes and improvements they have made, I express sorrow and regret at their apparent determination to remove this important protection. I am convinced that British judges are quite capable of sorting the wheat from the chaff in appeal cases. Preserving the automatic right of appeal will undoubtedly help ordinary people inadvertently caught up in the machinations of the EAW. I believe that it is in the interests of justice that the automatic right of appeal should therefore be maintained. I beg to move.
Baroness Hamwee
My Lords, things can go wrong in the best of organisations and the most learned and expert of professions. To me, the right of appeal is fundamental and I support the noble Lord.
Baroness Smith of Basildon
My Lords, I listened carefully to the noble Lord, Lord Hodgson. I think that he has argued a powerful case this evening and I share his concerns. I am not convinced that the Government have made the case for removing the automatic right of appeal. Given the criticisms that the Government themselves have made of the European arrest warrant, I find it particularly surprising that they now seek to remove the automatic right to challenge such a warrant.
I can understand why the Government brought this forward in terms of the Baker review. However, we are talking about British citizens being extradited to face what I would hope would be justice in another country. I have looked at the same information as the noble Lord, Lord Hodgson, and the figure of 12% of appeals being successful is likely to change significantly. The Government have made other, welcome changes to ensure that cases without merit are more easily dismissed, and we would support those. I am not convinced that the information that Baker had to work with can now be viewed as a reliable indicator of the current number of unsuccessful appeals. As the noble Lord, Lord Hodgson, said, the world has moved on and the Government have made changes, and therefore the figures will have changed.
However, the court will still have to make a decision on whether to allow leave to appeal. I do not know whether the noble Lord can help me on that. Would it be a written or an oral process? That is not clarified in the legislation. Whatever the process, it is going to require a degree of judicial and administrative time, and that seems to me to eat into any cost savings. However, the impact assessment says that those savings will in any case be minimal, if there are any at all.
The other point that the noble Lord made was about the court’s discretion. An individual would have to be able to show that they had new evidence or a different legal analysis, or that the evidence that the judge relied on in making the original decision to extradite them was wrong or incorrectly interpreted. We have to accept that there can be mistakes. The noble Lord, Lord Hodgson, outlined the scenario of a duty solicitor. He or she would do their best for their client but they might only just have met the client and may not have all the information. It is a complex area of law and they may not be up to speed or have dealt with such cases before, so it is not impossible, although it is understandable, for mistakes to be made. It seems to me that in the very short time available for seeking permission to appeal, they would have to have almost the same information as they would need for an appeal, and that is quite an amount of detailed information. I wonder how somebody in those circumstances could provide all the information required in the time allowed.
Lord Hope of Craighead
My Lords, before the noble Baroness sits down, it might help if I were to say that my understanding is that applications for leave to appeal have to be in writing. The grounds for seeking leave have to be written out in the application, and usually these things are disposed of on paper, so it is essential for success to have the grounds properly stated on paper. One has to bear in mind—this may be the noble Baroness’s point—that these things will be put together by somebody who is in custody, within a very short time limit, who may find it difficult to get access to legal advice. Without expressing a view one way or the other, I suggest that the practicalities of this measure need to be very carefully considered against the position of the individual who is having to comply with what would be now required.
Lord Taylor of Holbeach
My Lords, I confirm that the process is a written one—the noble Baroness asked that specific question.
Perhaps it is best if I start with the government amendments in this group, which would insert two new clauses into the Bill. First, Amendment 94DG implements an optional provision in the Fourth Additional Protocol to the European Convention on Extradition—the ECE—which the Government intend to ratify shortly. The ECE governs extradition between the UK and members of the Council of Europe—other than EU member states—plus Israel, South Africa and the Republic of Korea. This provision concerns the issue of speciality, which is the bar on a person being proceeded against for offences committed prior to extradition other than those listed in the extradition request.
Among other things, the Fourth Additional Protocol provides an optional mechanism whereby states can restrict the personal freedom of a person while a request to waive the rule of speciality is being considered by the state that originally extradited the person. This is not something that is currently catered for in Sections 150 and 151A of the Extradition Act 2003, which deal with the speciality rule in these cases. Accordingly, Amendment 94DG makes the appropriate changes to the 2003 Act. A person may only be detained under this new provision where both states have made the relevant declaration under the ECE and that declaration is still in force, and certain specified conditions, as set out in the new clause, are met.
Perhaps I may elaborate on that point. Those conditions are as follows. First, the Home Secretary requests the state that extradited the person to waive the speciality rule. Such requests are predicated on the prosecuting authorities being satisfied that there is a case to answer and that prosecution for other offences would be in the public interest. Secondly, the requested state must be notified by the Secretary of State that she would wish the person to be detained while they consider the request to waive specialty. Thirdly, the requested state must explicitly acknowledge the notification. If the requested state objects to the detention request then that person may not be detained; or if detained, must be released. Finally, and assuming these criteria are met, any application to detain the person will be made by the prosecuting authorities to the courts in line with general criminal law procedures. The new provision allows for detention in these circumstances for a maximum period of 90 days.
We believe there will be only rare cases which fall into this category. However, in those rare cases, the ability of the prosecuting authorities to apply for the person to be remanded in custody could be crucial to safeguarding the public and effecting a successful prosecution.
Amendment 94DH replaces Section 142(2A) of the 2003 Act. Section 142 deals with the issue of European arrest warrants in the UK; that is, in cases where the UK is requesting the extradition of a person from another member state. In the case of people who have already been convicted of an offence and whose extradition is requested in order to be sentenced or to serve a sentence, one of the conditions for the issue of an EAW by a UK judge is that the person is “unlawfully at large”. In a recent case a judge refused to issue an EAW in respect of a person who was in prison in another member state on the basis that the person could not be said to be “unlawfully at large”. Following that, we have decided to amend the 2003 Act to make clear that it is no barrier to the issue of an EAW that the person is in prison in the requested state. Amendment 94DH will achieve that.
I turn to the amendments tabled by my noble friend Lord Hodgson of Astley Abbotts. Let me preface my comments on the detail of his amendments by reiterating that we welcome the constructive approach he has taken to the extradition provisions in the Bill, and I am pleased to say that there is a great deal of common ground between us. As my noble friend explained, Amendments 94DA to 94DF would remove the appeal filter introduced by Clause 148.
A key finding of Sir Scott Baker’s review of our extradition arrangements was that the success rate of appeals was extremely low—less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals which delay hearings for all appellants. The purpose of the appeal filter is to address this problem by making appeals subject to permission from the High Court. I understand the points that my noble friend makes, but I must stress again, as I did in Committee, that these provisions will not prevent anyone applying for permission to appeal. Once an application has been made, the High Court will decide which cases should proceed to a hearing. Each application will be considered by a High Court judge.
Finally, I wish to make two further comments with regard to two of the other extradition clauses in the Bill. The first relates to Clause 144. That clause inserts a new Section 12A into the 2003 Act which provides a bar to extradition in EAW cases—cases where the issuing state has not taken a decision to charge and a decision to try the person. I want to make clear that the purpose of and intention behind this clause is to ensure that the case is sufficiently well advanced in the issuing country. We want to ensure that ordinary mutual legal assistance arrangements are used fully and properly. It is not our intention that a parochial approach to this clause should be taken. As the Court of Appeal has said, the Extradition Act 2003 should be interpreted in a cosmopolitan sense and be mindful of the stages of criminal procedure in other member states which do not use the common law. It is important that there is a clear intention to bring the case to trial. An EAW must, after all, be issued only for the purposes of conducting a criminal prosecution, as Article 1 of the framework decision makes very clear. We want an EAW to be used only for its proper purpose.
Comments have been made about the timescale for appeals. Clause 148 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period if the person did everything reasonably possible to ensure that the notice was given as soon as it could be. That is an important provision. It is also important to note that the seven and 14-day period relates to the notification of the intention to seek leave to appeal. I appreciate the concern that this is an insufficient period. However, it is also important to be clear that the onus should be on the person to ensure that as much as possible of the detail of why they believe they should not be extradited should be before the court as soon as possible. This would surely improve their chances of having the case discharged at an early stage by the district judge.
I would also like to clarify what the Minister for Policing, Criminal Justice and Victims said in the Commons Committee on 16 July last year in relation to dual criminality and Clause 152. He spoke about how this provision would work in practice in relation to an example about the offence of Holocaust denial. I want to ensure that there is absolute clarity on this point. Where an EAW was received for Holocaust denial allegedly committed in the UK, extradition would be barred for that conduct because it is not an offence here. However, extradition would be granted for such conduct committed in the issuing state, provided that the conduct is punishable in the issuing state with imprisonment or another form of detention for a term of three years, or a greater punishment, and of course that none of the bars in the Act apply so as to prevent extradition.
The noble Baroness asked a number of questions and I hope that I have answered some of them. Perhaps I may say particularly that the changes we are making will give people greater protections and improve the overall operation of the EAW, but that they will not impact on the number of unmeritorious appeals. It will be a matter for the courts how they operate the filter and decide whether to grant or refuse admission. On the impact of the NCA filter—proportionality—while the filter will leave the number of low-level cases that the courts will have to consider, we cannot say how it will impact on the number of cases that the court will consider. This will be dependent on the number of requests made by a state. I hope that I have been able to persuade my noble friend that our approach on extradition appeals is the right one and he should not press his amendments. As for the government amendments, I commend them to the House.
Lord Hodgson of Astley Abbotts
As ever, my noble friend is very courteous and extensive in his reply. I thank those who have spoken in support. The noble and learned Lord, Lord Hope of Craighead, made the point perfectly about the practicalities of doing something when you are in prison and doing so in a very limited timescale.
My noble friend, this evening and in our earlier discussions, placed great stress on the use of the word “reasonably”, and it is neither for me nor for various Members of the House to know how the judges will interpret “reasonably” when they come to consider this. I am sure the noble and learned Lord will have some views on that, but I will not take it any further tonight.
I thank my noble friend Lady Hamwee and the noble Baroness, Lady Smith of Basildon. I think the noble Baroness put her finger on it; we are in a changed situation now, and with great respect to my noble friend, he did tend to fall back on the clogging up argument. The reality is that the clogging up argument is yesterday’s argument. The Government have made some terrific changes, which I freely admit are going to make a great difference. It would be helpful if he could at some point let the House know the Home Office estimate of the impact of the new safeguards in reducing the number of EAWs to be issued and also, as the noble Baroness said, of the similar impact of the proportionality test that is going to be carried out the National Crime Agency, because I suspect that within the Home Office the number of EAWs will be reduced and therefore the number of unmeritorious appeals will be reduced greatly.
I conclude by saying that it is easy to think this is all very dry and dusty—but when you hear what people go through, it is not. Mr Andrew Symeou, speaking to the Home Affairs Committee last September, two years after he had been returned after a prolonged time held overseas, said:
“I have stories that you could not imagine. To be the youngest person in a foreign maximum security prison was traumatic. It changed my life in ways that I never thought it could. Even to this day I don’t feel like myself anymore. It should never have happened. I have lost too many years. All my friends are in full time employment and I am still trying to settle back into my life. I was a 19-year old student. I had never been in trouble with the law before. To show a British court this overwhelming evidence of my innocence and then to be extradited is crazy. I think it is quite simple: just don’t extradite people who are able to prove their innocence”.
It is on behalf of people like him that I am raising this issue tonight, but I do not intend to take it any further at this stage. I hope that my noble friend can give us some further and better particulars about the impact of the changes the Government are making. In the mean time I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
“Extradition to the United Kingdom to be sentenced or to serve a sentence
In section 142 of the Extradition Act 2003 (issue of Part 3 warrant), for subsection (2A) there is substituted—“(2A) The condition is that—
(a) the person has been convicted of an extradition offence by a court in the United Kingdom,(b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence, and(c) either a domestic warrant has been issued in respect of the person or the person may be arrested without a warrant.””
“Detention of extradited person for trial in England and Wales for other offences
(1) In sections 150 and 151A of the Extradition Act 2003 (dealing with extradited person for other offences), at the end of subsection (2) there is inserted—
“This is subject to section 151B.”
(2) After section 151A of that Act there is inserted—
“151B Detention of person for trial in England and Wales for other offences
(1) Section 150 or 151A does not prevent a person in whose case that section applies from being detained with a view to trial in England and Wales for an offence if the conditions in subsection (2) are satisfied.
(2) The conditions are that—
(a) the United Kingdom and the territory from which the person was extradited have each made a declaration under Article 14(3) of the Extradition Convention, and the declarations are still in force;(b) the Secretary of State makes a request for the consent referred to in section 150(3)(c) or 151A(3)(c) in respect of the offence (“the consent request”);(c) the Secretary of State gives notification, which is explicitly acknowledged on behalf of the territory, of the date on which the detention is to begin (“the notified date”). (3) The Extradition Convention is the European Convention on Extradition done at Paris on 13 December 1957.
(4) This section applies only to detention during the period beginning with the notified date and ending with whichever of the following occurs first—
(a) if a notification of opposition to the detention is given on behalf of the territory, the date on which Secretary of State receives it;(b) the date on which the Secretary of State receives notification given on behalf of the territory as to whether the consent request is granted or refused;(c) the expiry of the period of 90 days beginning with the date on which the consent request is received.””