Protection of Freedoms Bill
Baroness Hamwee Excerpts(12 years, 7 months ago)
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Baroness Hamwee
My Lords, I have Amendment 91 in this group, which is in my name and that of my noble friend Lady Walmsley. The noble Lord, Lord Lucas, has obviously not been subject to Black Rod’s little talk about security in this place, which urges us all to wear our passes at all times—which I acknowledge I am not at this moment—rather than rely on people knowing who we are.
Lord Lucas
My Lords, I know that we are all supposed to do that, but I am sure that the noble Baroness has seen, as I have, groups of guests wandering around with unidentifiable passes and noble Lords with their passes on back to front so that you cannot see even whether they are a Lord let alone who they are. Eyeball recognition by the doorkeepers is much more reliable and efficient, and is probably cheaper at the end of the day.
Baroness Hamwee
Perhaps I had better not continue down this route—I could, but it would take more time than the Committee might like to devote to it.
Another point on which I am perhaps not with the noble Lord is that every school knows what every child is up to all the time—I wish that were so. I am sure that we are going to hear from the Minister about the balance between privacy rights and sensible use of technology—I hope that we are not going to hear about feed-in tariffs, which seemed to stretch the analogy a bit far.
The noble Lord, Lord Lucas, did not know, on reflection, what his Amendment 85 was about. I have been in that situation as well, but that is not so on this amendment, against which I wrote “silence equals assent”—I think that it is the difference between opt-in and opt-out.
Before I come to the detail of my amendment, I wish to pick up on the point made by the noble Lord, Lord Rosser, about the technology being used in schools not being as sophisticated, if I can use that term, as technology used in other contexts. Can the Minister say how reliable the equipment is? That was the immediate question I had in response to the noble Lord’s comment.
My amendment does not contradict any of the other amendments that have been spoken to and is not inconsistent with the Bill. It provides that the relevant authorities, schools, academies and FE colleges should tell parents and children of their rights to refuse consent at least once in every academic year—in other words, it is about informed consent. The suggestion comes from the Children’s Rights Alliance for England, which supports the provisions in the Bill for ensuring that the institutions cannot process biometric data if consent is refused. I know that my noble friend will say a word about the convention rights.
I have been told by the Children’s Rights Alliance about research which shows that most children using these systems have not considered how long their fingerprints would be held for and they generally were not concerned. My response to that is that of course they would not—they are children and they do not necessarily think through all the implications of what they are being asked to agree to. Therefore explaining exactly what the subject matter is, both to them and their parents, is important. Other research—again, I am not surprised about this—shows that when schools have introduced a biometric system they have emphasised the benefits and not talked about the problems. All of this is natural human reaction.
The noble Lord, Lord Rosser, referred to the report of the Information Commissioner in 2008. The Information Commissioner made it clear that schools which collect data must be aware that children are data subjects and that they,
“should in the first instance be informed and consulted about the use of their personal data”.
This being the first principle of the Data Protection Act, he went on to say that,
“Fairness requires that schools ensure that pupils are informed about and understand the purpose for which their personal data is being processed”.
Our amendment would require that they are in a position to give consent—or, indeed, withhold it—but on an informed basis.
The Earl of Erroll
My Lords, this is an area which I have been thinking and worrying about because of the practicalities of it all. The part about children and schools is a well meaning and well intentioned effort to introduce legislation to make sure that children’s privacy is not breached and that no information is kept on them which could make things difficult for them in later life. It is very important that we should not do that.
However, as the noble Lord, Lord Rosser, said, we could try to make sure that the biometric information that is used for administrative purposes is not kept to evidential standards. In other words, the information could not be used in courts; it could not be linked up with the police computer; it could not be linked up elsewhere. That could be done simply by making sure that it is kept to a standard which is good enough to identify people for administrative purposes in populations of a few thousand, but once you raise it up to a national scale it does not work. For instance, under EU directives there have to be 13 matching points for a fingerprint to be admissible in evidence in court—that is, 13 out of 18. If only 10 or 11 were kept, which is probably quite sufficient for the school’s purposes, the information could never be linked with the main national databases. That might well be a way round it. That is contained within this group of amendments.
Baroness Hamwee
My Lords, the amendment simply provides for the turnover of pupils generally on an annual basis. I certainly did not intend it to be reworded every year. Information goes out from schools frequently on an annual basis. Sometimes, it sits in the bottom of a child’s bag.
While I am on my feet, the noble Earl may be comforted if the Minister can confirm that, for the purposes of these provisions, writing includes e-mails and other forms of electronic communication, which I suspect it does.
The Minister of State, Home Office (Lord Henley)
In the interests of time, I confirm that that is correct.
Lord Henley
My Lords, I think this is what lawyers refer to as a question of fact and degree. If the system were, as my noble friend puts it, enhanced considerably and that involved a real change, then there would have to be further approval from the parents and children concerned. If it were a minor or technical change, I think that would not be the case. I shall leave it there, as it is a question of fact and degree as to whether there has been a proper change. I am in the hands of my noble friend Lord Lucas, but I hope that with those explanations of the various amendments he will feel able to withdraw his amendment. I think this debate has been very useful. We might not all agree totally but, as always, it is a question of getting the balance right on these matters, and I hope we have got it more or less right.
Baroness Hamwee
Am I right in understanding—and I apologise if this sounds as if I am trying to put words into the Minister’s mouth—that his concern is the bureaucratic provision of a requirement to make information available every year but he accepts that consent under these clauses would not properly be given unless the parent or child, as the case may be, is properly informed?
Lord Henley
Parents and children, to the extent appropriate for the child’s age, must be informed in the appropriate manner, and we want to get that right. We just do not think it needs to happen every year. If, as my noble friend Lady Walmsley said, there were substantive changes to what was being proposed, then further consent would be required, but we do not have to do that each and every year. Once should be enough for the duration of that child’s journey through that school.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendment 101, and there are other amendments in this group. My amendments are quite simple. They are probing amendments. Clause 29(3) provides that provision may, in particular, be made in the code about standards applicable to persons using systems or processing information. When I read that, I hesitated and wondered what was meant by “standards” in this context. My amendment proposes inserting a reference to operational practices because it seems to me that they are relevant, rather than the people who are using or maintaining the systems as individuals. I beg to move Amendment 100 in order to help me understand the clause a little better.
Lord Tunnicliffe
My Lords, I rise to speak to Amendments 102, 106 and 112A. I thank the noble Lord for ensuring that the results of the first consultation on the proposed CCTV code of practice were published before the Committee stage in order to ensure proper scrutiny. The opposition amendments in this group seek to probe the Government’s thinking in this area and to tease out more detail of the shape of the final code now that they have reflected on the results of the consultation.
On Amendment 102, we are concerned that any future code should not force local authorities and police forces into disclosing the location of cameras. The consultation notes that some respondents,
“considered that there ought to be public access to a full list of camera locations and data retention periods”.
I note that the Government, although not committing to such a view, stated in response:
“The Government intends that the Code of Practice will increase transparency over the operation of surveillance cameras”.
It is right that, in some cases, CCTV locations are made public. Indeed, many cameras are clearly visible to the public and their visibility acts as an important deterrent to crime. However, it must be right that local authorities and police should reserve the right to conceal the location of other cameras, particularly those positioned in sensitive locations and deployed temporarily in order to apprehend criminals. There is also a real concern that, by disclosing the location of cameras and surveillance centres, there is a risk that these will become the targets of vandals and criminals wishing to prevent the detection of crime. Will the Minister give a clear assurance to the Committee that any future code of practice will not include a blanket requirement to disclose the location of surveillance cameras?
Amendment 106 probes the Government’s intentions with respect to the code of practice in relation to CCTV and ANPR footage that is used as evidence in court. Clause 33 currently provides:
“A court or tribunal may, in particular, take into account a failure by a relevant authority to have regard to the surveillance camera code in determining a question in any such proceedings”.
In fact, this would appear to be the only real enforcement tool at the disposal of the Government. Local authorities will be required to have regard to the surveillance camera code but they will commit no criminal or civil offence if they fail to adhere to it. The implication is that the Government envisage that local authorities and police forces will feel compelled to comply with the code for fear that otherwise evidence provided by their cameras will not be admissible in court.
This view is reinforced by the response to the consultation in which the Government note that the failure to comply can be tested in judicial proceedings. It is one thing to conclude that evidence should be inadmissible on the basis that it violates requirements under the Data Protection Act; however, it is quite another to jeopardise whole trials on the basis that, for instance, the location of the camera in question was not adequately disclosed to the public. What assurances can the Minister give to the Committee that enforcement of the code in this way will not lead to the police being hamstrung in their use of key evidence derived from CCTV cameras?
Finally, Amendment 112A seeks again to probe the Government’s intentions with regard to ensuring that there is clarity for local authorities on the overlap of existing requirements under the Data Protection Act and those under the proposed code of practice. This point was raised by a number of sources when the Bill was debated in another place. Indeed, the Information Commissioner has himself expressed concerns about the implementation of the code in this area. In a letter to my noble friend Lady Royall on 22 November the Information Commissioner noted:
“There is potential overlap between these provisions, including my role, and those set out in the bill relating to the Secretary of State’s Code of Practice and the activities of the Surveillance Camera Commissioner”.
In his memorandum to the Public Bill Committee, the commissioner goes further, stating that,
“there is a risk that regulation becomes frequently fragmented, confusing and contradictory, especially if commissioners take different approaches … there will be overlaps in their responsibilities running the risk that commissioners may adopt differing interpretive approaches and guidance on each other’s statutory provisions”.
The Government’s consultation recognises that there is an issue to be dealt with, and states:
“We shall take note of the concern expressed by respondents in the way we develop the role of the Surveillance Camera Commissioner and how this interacts with that of the Information Commissioner and the Surveillance Commissioners”.
To prevent unnecessary bureaucratic burdens and confusion in the public sector, I ask the Minister to take this opportunity to expand on how the Government aim to ensure maximum clarity and minimum overlap in the roles and requirements of the two commissioners.
Baroness Hamwee
My Lords, it may be helpful if I address this issue now so that we do not need to come back to it later. The wording is “standards applicable to persons”. Is the Minister saying that this refers to the standards used by persons but it is not applicable to them? If anything, it is about them: it is not who they are but how they work and the standards that they use. It reads as though it is much more personal.
Lord Henley
I think that my noble friend has got it right. If she has not, I will certainly write to her. The point I was trying to get across is that the standards apply to the process and not just to the person. I expect my noble friend is a better draftsman than I am—I give her an assurance that I did not draft this myself—but Parliamentary draftsmen are a law unto themselves. If we have not quite covered the point that my noble friend is making, we will look at it.
I was slightly surprised that Amendment 102 was spoken to by the noble Lord, Lord Tunnicliffe, but I appreciate that it is a probing amendment and seeks to find out what we are trying to do. I repeat that the Government, despite what the noble Lord, Lord Rosser, said, are committed to supporting the use of CCTV and ANPR—automatic number plate recognition—as very effective crime-fighting tools and to their being used with the support and confidence of the public. That is the important point we must remember. We need the support and confidence of the public, and that is why I mentioned the experience of Birmingham when debating an earlier amendment.
Such support will be dependent on transparency on the part of the system operator about the purpose of their camera deployment and the area in which the cameras are being used. Not only would Amendment 102 send a signal that operators can be more covert about their use of CCTV but, more fundamentally, it is likely to run contrary to the Data Protection Act. The Information Commissioner’s existing CCTV code of practice is very clear on the general requirement to let people know that they are an entering an area with CCTV coverage. The guidance states:
“The most effective way of doing this is by using prominently placed signs at the entrance to the CCTV zone and reinforcing this with further signs inside the area. This message can also be backed up with an audio announcement, where public announcements are already used, such as in a station. Clear and prominent signs are particularly important where the cameras themselves are very discreet, or in locations where people might not expect to be under surveillance. As a general rule, signs should be more prominent and frequent where it would otherwise be less obvious to people that they are on CCTV”.
As I said earlier, we saw in Birmingham that public confidence can very rapidly be undermined if the police and others are seen to be imposing these systems without the appropriate public consultation or support.
That is not to say that there will not be occasions when covert surveillance needs to be conducted using CCTV. We are not ruling that out. However, in such cases the surveillance will need to be properly authorised under RIPA. Clearly, in such cases there would not be the same expectation that the location of the relevant cameras was publicly disclosed.
On Amendment 106, I appreciate that it stems from a concern that justice might be prevented or denied in a criminal trial where the defence argued successfully that a small technical breach of the code is sufficient to demonstrate that CCTV or ANPR evidence is flawed and not of a sufficient evidential standard. From that starting point it might be possible to construct a scenario where, in an attempt to invalidate that evidence against their clients, lawyers would be falling over the detail of a relevant authority's performance against the code and seeking auditable records of any decisions made. We believe that that evidence may be very valuable in any trial, but it is rarely going to be the only source of evidence. I find it difficult to foresee a scenario where a case would be dismissed just because CCTV evidence is argued as inadmissible due to the system operator being in some way non-compliant with the code. The amendment should be seen in the context of a code that is intended to be a reference document to help ensure that surveillance cameras are used proportionately and effectively but which does not impose absolute requirements on operators. Against that backdrop, we do not believe that the provisions will give rise to the fears expressed by the noble Lord.
On Amendment 112A, I have a degree of sympathy for the spirit that underpins it. It seeks to ensure coherence between the requirements in the surveillance camera code and the Data Protection Act and I can see why there might be concerns about overlapping guidance in this area. Those concerns are precisely the reason why we are proceeding with the development of the code through close discussion with the Information Commissioner and his office. The Information Commissioner is keen to work with us to help ensure that there is effective regulation of surveillance cameras with clarity and coherence for both system operators and the public. I believe that that work will ensure that not only the code of practice but the roles and responsibilities of the two commissioners fit together and everyone can be directed to the right place for guidance, information and advice.
I think that I have dealt with the point raised by my noble friend Lady Hamwee, and I hope I have dealt with the points raised by the noble Lord, Lord Tunnicliffe. I hope that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I am grateful for that clarification. Under Clause 34, the Secretary of State is to appoint the Surveillance Camera Commissioner. My amendment proposes that the appointment instead be made by Her Majesty by Letters Patent. The reason for this amendment is that the Information Commissioner, to whom we have referred several times this afternoon and previously in Committee, and who before holding this office was in a previous incarnation the Data Protection Commissioner and before that the Data Protection Registrar, is appointed through the process which I propose here. The roles of the Surveillance Camera Commissioner and the Information Commissioner seem to be complementary; there is a lot of common ground and certainly they have quite a lot of mutual interest. My amendment seeks to understand the distinction in the modes of appointment. Are the Government seeking to create some sort of hierarchy or, briefly, why is there a difference?
Before he had to leave the Committee the Earl of Erroll came over and said that he supported my amendment. Possibly his support is greater than the thrust of my amendment, at any rate at this stage, but I thought I should report that to the Committee. I beg to move.
Lord Henley
I am grateful to my noble friend for her amendment and for her explanation of what it is about. I am also grateful that she assured us that she had the support of the noble Earl, Lord Erroll, who I think has some very important hereditary role in Scotland which probably influenced him in his view of insisting that this should be a matter for Her Majesty rather than the Home Secretary.
I will make just a few remarks about the role of the commissioner which I hope satisfy her concerns. It is a role which will be pivotal in promoting first the new code of practice, and in assessing its effectiveness and impact. In particular, the commissioner is charged with encouraging compliance with the code, reviewing how it operates, and providing advice on the code. Precisely how the commissioner decides to fulfil those duties will be a matter for him, but it will involve an impartial and independent assessment of all the issues. Independence is something we want to stress.
As we have already made clear, as did my honourable friend when he debated these matters in another place, our intention is to combine the new role of the commissioner with that of the existing Forensic Science Regulator. The existing regulator, Mr Andrew Rennison, was appointed by the previous Government as the interim CCTV regulator. He therefore already has considerable grounding in this area, and he has established a wide range of contacts with interested parties. That will be helpful in his new role of promoting and monitoring the code of practice.
At the same time his work as the forensic regulator will provide a useful complement, as well as much relevant background, in the area of seeking to improve the consistency of use and standards of performance of CCTV. Improving the evidential value of camera usage and images is also an important area, and one which cuts across both roles.
At the moment—and I will come on to this—I appreciate that sometimes these matters are dealt with by the Home Secretary and sometimes by the Crown. However, I do not see the need to depart from the normal practice, that is that the appointment is made by the relevant Secretary of State, in this case my right honourable friend. As with any other statutory office holder, we would expect the Surveillance Camera Commissioner to discharge his responsibilities independently of ministers and without fear or favour.
As with other public appointments, the appointment process will be overseen by the Public Appointments Commissioner and from April 2012 it will be regulated by the Office of the Commissioner for Public Appointments code of practice. This will be the case whether the appointment is made by my right honourable friend or by Her Majesty on advice from the Government.
The amendment would not actually provide a materially different outcome in terms of independence of the officeholder. I appreciate that my noble friend has drawn a comparison with the Information Commissioner, suggesting that there is some sort of hierarchy between different appointments as to who makes them. However, that office has a somewhat wider remit and plays a key role in regulating the Government itself. The additional assurance provided by the appointment by Her Majesty is therefore justified in that case but I do not think it is warranted here, given the somewhat narrower focus of the Surveillance Camera Commissioner, and would not lead to a different outcome.
I hope that that assurance is sufficient for my noble friend. I assure her that we will want a robust, independent commissioner dealing with surveillance cameras and that the appointment process provided for in the Bill will secure that outcome. Although I appreciate that there are occasions when it is appropriate that Her Majesty should make the appointment on the advice of the Government, there are other occasions when it is just as appropriate that it should be by my right honourable friend the Home Secretary. I hope therefore that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, that response is helpful, particularly the comment about the Information Commissioner regulating the activities of the Government. Of course, the Minister will understand that we think that the way the Government use cameras should also be regulated, as in my noble friend’s Amendment 107. I accept that there will not be any difference in reality in the process, except for that last stage. It is important to have had the assurance that there is not a hierarchy in importance or in powers. I was concerned that there should not be, given the potential mutual interest—as I said, it is not quite an overlap—and I think we have had that. I beg leave to withdraw the amendment.
Baroness Hamwee
“Commissioner’s report on alteration or replacement
As soon as the Commissioner considers it practicable but in any event not later than three years after the date provided by section 35(2)(a)(i)—(a) the Commissioner must prepare a report about the alteration or replacement of the code which shall in particular include reporting on extending the code to operators not initially subject to it;(b) the Secretary of State must lay a copy of the report before Parliament; and(c) the Commissioner must publish the report.”
Baroness Hamwee
My Lords, this amendment proposes that the commissioner should, within three years, prepare a report about the extension of the code to other operators. We have already touched on this in referring to Clause 33. My noble friend Lord Phillips, who has been taxing me with notes asking me to justify the drafting of this section, which is not my responsibility, asked under a previous amendment not about the extension of the code but about which operators were subject to it. He was asking why this chapter starts by appearing to be quite general and then becomes more restrictive once we get into the detail of Clause 33. He is nodding; I hope that I am interpreting him correctly.
My understanding of this is that because, under Clause 33(5)(k), more persons can be added to those who come within the definition “relevant authority”, Clause 29 and the succeeding clauses are drafted in that slightly wider way. I share my noble friend’s concern that “relevant authorities” should extend to a wider group of operators than are listed in Clause 33(5)(a) to (j).
A similar question was asked during the Committee stage in the Commons, and the Minister, James Brokenshire, said:
“The report—
this is the regular report to the commissioner—
“will be an instructive and formal means for the commissioner to telegraph clear recommendations about the code, its application and whether it is achieving its intended objectives”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 26/4/11; col. 364.]
My amendment takes the matter wider to those who operate the code.
It occurred to me only during this debate that it will be helpful to have—and I am sorry to be technical, but the noble Lord, Lord Faulks, will probably tell me that I am not accurate in this question—reassurance that the sui generis rule does not apply and that by having a list that is very specific we are not stuck to those organisations and persons who are similar to those listed in paragraphs (a) to (j) of Clause 33(5). Clearly there is concern that a much wider group of persons—private companies do not quite come within this—and all operators of CCTV, those who run shopping malls, for instance, should not be brought within the scope of the code. We know how the concerns have started, but the more we talk about it, some of us feel that there should be a code that is observed by all operators. While I understand that getting experience of the use of the code under one’s belt might be a good thing, I think that we would like to know that the position will be reviewed in fairly short order. I beg to move.
Lord Phillips of Sudbury
My Lords, I would just like to add a few points to those made very effectively by my noble friend Lady Hamwee. I regret to ask the Minister some questions, because it always seems churlish to spring technical questions upon a well meaning Minister, but I hope he gets advice from his rear quickly.
First, Clause 34 “Commissioner in relation to code” states that in Clause 34(2)(b) that the commissioner has the function of,
“reviewing the operation of the code”.
I agree with my noble friend Lady Hamwee that that does not, on the normal reading of those words, extend to consideration of the exercise of power to specify new bodies to be caught by the code under Clause 33(5)(k).
Secondly, will the Minister confirm that there is nothing in Clause 35 “Reports by Commissioner” that appears to authorise the commissioner in making reports to consider the point of extension of the code, which I would have thought justifies Amendment 113?
Finally, all those arguments would count for nought if in Clause 33(5)(k) the proper construction of “any person” is to confine “any person” to bodies comparable to “relevant authorities”. My own view is that it does not. In view of the opaqueness of the drafting of this part of the Bill and, as I said earlier, the fact that Clause 29 refers twice to “persons” but not at all to relevant authorities, I feel we need to be very clear of our ground here. In my humble view, there is a lot more concern about the operation of CCTV cameras by private interests than by public ones. I cannot think, for example, that the Sub-Treasurer of the Inner Temple is likely to abuse the CCTV cameras within his or her purview, but I am afraid I can foresee that some private operators might get up to things that are extremely undesirable.
The end of all that is whether the Minister can say to us now that he will take this away, look at it and if necessary bring forward his own amendment at the next stage of the Bill. I hope he might do that. I apologise again for springing this rather nasty group of questions upon him, but I was unprepared for the debate as it has evolved.
Lord Henley
Obviously, I will take advice from those who are skilled in drafting, which is a skill that I have never learnt and I have no way round it. To me, it is quite clear that there is a relevant authority, and we list the relevant authorities, but “relevant authority” can be extended by subsection 5. Relevant authority is mentioned in subsection (1), but “any person” in subsection (2) would include all those in subsection (5)(a) to (j) and paragraph (k) when it expands the role of paragraphs (a) to (j). I suspect that we will not get very far by arguing this now, but it might be that we could discuss it later. It might be something that I can assure my noble friend that we will look at with the relevant drafting authorities to make sure that we get it right if he thinks that we have got it wrong.
I shall move on to the other questions that my noble friend asked about Clauses 34 and 35 and what the commissioner can do and how he can review the code. My noble friend felt that Clause 34(2)(b) on,
“reviewing the operation of the code”,
and Clause 34(2)(c) on,
“providing advice about the code”,
limit what the commissioner can do. Again, I stress that the commissioner is independent and it will be up to him to decide in the light of what is in statute. He will also have the ability to go beyond that should he so wish. The question that we come back to with the amendment concerns what sort of review we should have. I agree with my noble friend Lady Hamwee that it is quite right that we should keep the code under review, but I believe that the Bill provides adequately for that.
Clause 34 sets out the functions of the commissioner in some detail. They include encouraging compliance with the code and reviewing its operation. The commissioner is also asked to report annually on the exercise of those functions, and those reports will be laid before Parliament. In discharging those functions, we fully expect the commissioner to consider whether the code needs to be revised in any way and, no doubt, to offer advice and include recommendations to that effect in his annual report. We would also expect the commissioner to review from time to time whether the duty to have regard to the code should be extended to other operators, be they public or private, given that the extension of this duty is one of the ways in which he will be able, under Clause 34(2)(a), to encourage compliance with the code. Again, this is something that we want to do. Although the code will initially be binding on the relevant authorities only, we hope that others will look to it as the model by which they act. The commissioner will report annually on his functions so, again, we do not need to wait for up to three years, as suggested by my noble’s friend amendment.
With those assurances and that explanation, and accepting the point that we will certainly look again at what my noble friend Lord Phillips had to say about the drafting—I do not agree with him, but I might be wrong; I frequently am—I hope that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, the Minister referred to compliance by relevant authorities and others who might look at how it is working. That takes us straight back to Clause 33(5)(k) and whether the person referred to there is to be construed in the normal meaning of that language. I have been trying to catch the eye of the noble and learned Lord, Lord Scott, to tempt him to enter into this, but he has resisted, which is probably quite right. I see now that he is not going to resist.
Lord Scott of Foscote
Everyone who is mentioned in subsection (5) is either an individual or a corporate body and would fall within the meaning of the word “person”.
Baroness Hamwee
I think that might assist us. We are concerned that private corporations, if that is a concept that one can have, should be caught within the term “person”. The example that I used was the operator of a shopping mall. However, perhaps it is not fair to continue this debate in public. My noble friend Lord Phillips and I have made our concern very clear, and this debate is a little circular, so at this point the best thing I can do is to beg leave to withdraw the amendment.
Immigration
Baroness Hamwee Excerpts(12 years, 7 months ago)
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Lord Henley
My Lords, the noble Lord, Lord Anderson, is right to point out that we owe a lot to immigrants, particularly in those so-called hard-pressed services. However, there are a great many employed people in this country. As he will remember, a previous Prime Minister, Mr Gordon Brown, made a point of wanting British jobs for British people. Those jobs could be done by people here if they were able to take them up. Regarding the noble Lord’s substantive point about the genuineness of marriage, that is something we want to address and are addressing.
Baroness Hamwee
My Lords, the Office for Budget Responsibility has drawn attention to the link between migration and growth. Its July report on fiscal sustainability mentioned that immigrants are more likely to be of working age than the general population. Will the Minister acknowledge the importance of this factor, given our generally ageing, and therefore less economically productive, society?
Protection of Freedoms Bill
Baroness Hamwee Excerpts(12 years, 7 months ago)
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Baroness Hamwee
My Lords, perhaps I may make some more general points following the comments in particular of the noble Lord, Lord Bichard. I struggled with both the terms “day-to-day” and “close and constant” and rather came to the conclusion that there may not be a snappy phrase that will deal with the issue that noble Lords have identified so powerfully. We may know the situation when we see it, but we may not be able to find a couple of words to describe every such situation about which we are concerned. I was glad to read—noble Lords referred to this—that the Government will provide guidance on the question of supervision. However, the guidance cannot go beyond the legislation.
It troubles me that we may be trying to find a way of putting succinctly into legislation something that will not quite fit. This might be an occasion when we have to be a bit more verbose than we would normally want to be—I do not know; other people’s language skills will be better than mine. However, I was left with the concern that we should not rely on guidance saying something in addition to what the legislation says, because it cannot.
I hope that the guidance which emerges at the end of this process is easier than the language in the Bill. I struggled an awful lot with the double negatives. It will not be a service to those who are working in the field if we cannot produce something that is much easier to follow.
I want to add one other thought which is very much implied, if not explicit, in what other noble Lords have said. Whom does a child trust more: the worker, for want of a better word, with whom he develops a close relationship; or a supervisor who has perhaps not been in a position to create the same trust, because the supervisor is the authority figure and may not be perceived as being on the child’s side?
The Minister of State, Home Office (Lord Henley)
My Lords, I am grateful to my noble friend Lady Hamwee for, in effect, finishing off this debate. She took us back to the general, which is what I want to start off with. I think that it was the noble Baroness, Lady Royall, who was somewhat critical of what we are proposing in this area and quoted a great deal from, I think, User Voice. I was then grateful for the intervention from the noble Lord, Lord Bichard, the author of the Soham report, who reminded the Committee that, as he put it, what had followed his report—the recommendations, if I may summarise them—was not exactly quite as proportionate as he felt it should be. I stress that we are looking for the right degree of proportionality and the right balance in the Bill. That will obviously be difficult to achieve. I am therefore grateful for the chance to address just some of the issues in relation to this amendment.
Sticking with that generality and the quotations that the noble Baroness, Lady Royall, gave from User Voice, I should remind her that there was considerable support for the Bill and the proposals in this area when they came out. I can quote Anne Marie Carrie, the chief executive of Barnardo’s, who said that the Government’s proposals were a “victory for common sense”. She said:
“There is already enough safeguarding in place for people who have unsupervised, substantial access to children”;
and that:
“This approach will make it easier for grandparents, parents and neighbours, who should be able to play an important role in a child’s life without unnecessary red tape”.
There was also support from the Scout Association, Nacro and others—I could go on. The question that we want to address is how to get the right degree of proportionality.
The amendments are very much in three groups. I do not know the intention of the noble Lords who tabled the various amendments, but if it is thought that we might vote on them, I should say that I am fairly sure that the amendments tabled by the noble Baroness, Lady Royall, would not be consequential on Amendment 58. However, we will get to that in due course.
Amendments 58, 61 and 62 were tabled by my noble friends Lady Heyhoe Flint and Lord Addington. I am grateful to them, and to my noble friend Lady Walmsley, for reminding us that my honourable friend Lynne Featherstone and I had an opportunity to discuss this matter with a large number of representatives of the sports and leisure sectors as well as a number of my noble friends at a meeting in the Home Office. There have been subsequent meetings and we have listened very carefully to the arguments presented. I think that we have taken on board some of those concerns.
Obviously one of those concerns is that supervision is very difficult to provide in the context of sport. That is what we want to deal with at this stage. The Bill now requires that we provide statutory guidance in relation to supervision to assist sports governing bodies, and others, to decide on whether a particular employee or volunteer falls within or outside the scope of regulated activity. As we have made clear, we intend to consult on draft guidance in advance of Report. I can assure the Committee that we will include the sport and recreation sector in that consultation. I can also assure the Committee that the guidance will include elements specific to that sector.
The noble Baroness, Lady Royall, asked me whether I could get the response to that consultation out before Report. I appreciate that Report, given the speed at which we are moving, is some time off and getting a response to that consultation might be somewhat difficult. However, we certainly hope to get the consultation out and that will be useful for the House to have a look at in advance of Report.
We do not, in principle, see the need to move away from the notion that where individuals can be properly supervised, then in some circumstances there is no need for their work to fall within regulated activity or for barred-list checks to be made. Proper supervision should help to reduce the risk of improper conduct and of inappropriate relationships developing. Noble Lords have spoken about the dangers in this area. I appreciate that there have been some concerns about what supervision means and whether this will apply, for example, to an assistant sports coach. However, I should say that we are not seeking to define supervision by a title, such as “assistant” or “deputy” coach or trainer. If such roles are working independently of the head coach and not being supervised, they would remain in regulated activity.
This provision is intended to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. One of the bodies that commented on this was the Scout Association, which said that it preferred to supervise individuals when they first join the organisation before barred-list checks become necessary. There is of course no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred-list checks must be made.
My noble friend Lord Addington looked for examples of what would be adequate supervision. This will obviously vary according to where you are and what you are doing. In a classroom or indoor venue, the supervisor should be in the same room for the majority of the time, excepting that they may on occasion need to leave for a short break. In a classroom, a teacher or other adult in a regulated activity should be in the room with the supervised assistant and be able to see their work for most of the time. Matters would obviously be different in an outdoor context, and my noble friend was right to draw on this. On playing fields, one coach or supervisor should be able to supervise an individual on the same or a neighbouring pitch—for example, an assistant football or rugby coach helping with the same match or on a next-door pitch, but not across a vast number of pitches or where activities take place at a considerable distance. My noble friend also gave the example of an assistant coach who might have some special expertise that his superior would not understand. Again, if that were the case, the appropriate checks would have to be made because, I should make clear, the whole matter would be a question of tact and degree according to the facts of the case at any point.
Perhaps I may also say a word or two about the drafting of Amendment 61, because the noble Baroness, Lady Royall, raised a concern regarding the meaning of “recreational”. As drafted, that amendment would not in any event achieve the desired intention. It would not extend the list of establishments to include sports venues. It simply adds sport to the description of work in the existing list of circumstances. Its effect, therefore, is that supervised volunteers coaching sports in schools would be in regulated activity, but supervised coaches elsewhere—paid or unpaid—would not be. In addition—a point queried by the noble Baroness, Lady Royall—it provides no definition of a recreational activity, which could mean that the amendment would inadvertently catch a wider range of activities than intended.
Baroness Farrington of Ribbleton
Can the Minister give the assurance which I understood his noble friend Lady Hamwee was seeking? He used the term “proper supervision”. I understood the noble Baroness, Lady Hamwee, to say that there ought not to be anything stronger in the guidance than the wording in the Bill defining “supervision”. It would be very helpful if the Minister could give an undertaking that that fear is totally unfounded and ensure that his sense of “proper supervision” is defined as much in the Bill as in the guidance.
Baroness Hamwee
Perhaps I should see whether I can make myself absolutely clear. My concern was that primary legislation must trump guidance and that guidance cannot go further than the legislation. That is what I was trying to express.
Lord Henley
The noble Baroness, Lady Hamwee, is a lawyer and she has expressed exactly how it should be. Obviously guidance does not go beyond the legislation. That is one reason why I shall resist the amendments put forward by the noble Baroness, Lady Royall, which ask for close and constant supervision, because we think that that goes too far. However, I shall address that in due course. The important point is that we have to get this guidance right. To get the guidance right, we have to get the consultation right, and I hope to have the consultation available before we reach Report.
Perhaps I may now deal with the noble Baroness’s Amendments 59, 60, 63A, 64 and 65. As always, we want to strike the right balance. Balance is the new word that I have learnt in the Home Office, and it is very important in this Bill that we get that right. I think it was the theme behind what the noble Lord, Lord Bichard, said. It is a question of proportionality. Our definition in this provision insists that it must be substantial. For example, an occasional, or even weekly, meeting between the supervisor and the supervised would not be sufficient.
The noble Baroness’s amendments would change the wording to “close and constant”, which would render the definition of supervision unworkable and go against the Government’s intention of having more proportionate disclosure and barring arrangements. If you think about it, the words “close and constant” are pretty severe. I gave the example of the classroom environment, and “close and constant” does not even allow leaving the room occasionally. They would in effect mean that the work of a volunteer working in a sports club under the supervision of a qualified sports instructor would become regulated activity if that qualified instructor left the room at any stage, because the supervision would then not be constant. That goes too far and undermines our proposals to scale back disclosure and barring to common-sense levels by imposing an unrealistically high test for supervision.
We believe that the Bill as drafted, coupled with the statutory guidance that we will publish following the consultation, will produce the right result in setting the boundaries of regulated activity. For that reason, when we get that consultation out, I look forward to comments from all around the country and from all noble Lords, and I hope that the noble Lord, Lord Bichard, will feed his experience into it.
Finally, I turn to the amendments tabled by my noble friend Lady Walmsley. Amendment 63 seeks, in effect, to bring all those who work in FE colleges within the scope of regulated activity. I should first stress that all paid teaching and non-teaching staff in establishments, including further education colleges, that wholly or mainly provide full-time education to children will remain within regulated activity and therefore must undergo a barred list check as part of their pre-employment checks. In addition, the unsupervised teaching, training, instruction, care or supervision of children in further education institutions will remain a regulated activity, even where such an institution provides education mainly to adults.
Amendment 63 would go further by bringing into regulated activity all work by any staff in further education colleges providing education to even a small number of children where staff have the opportunity for contact with children. Under the current scheme, such work is “controlled activity”. Controlled activity is to be abolished under Clause 68. We believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education or care of children, for example in a primary school or a nursery.
The Government do not consider it proportionate for the state to require or allow barred list checks on activities that are currently defined as controlled activities. Such activities generally entail only incidental contact with children. I question whether all colleges would really welcome a duty to check hundreds of staff just because the college takes on, for example, half a dozen 17 year-old students.
Baroness Hamwee
Will the Minister move away from the wording of this amendment—I take the point he makes about it perhaps being too blanket in its coverage—and address the point about who is a child for the purposes of the protection that we are seeking to apply? I think that is what underlines the points made by my noble friends in addressing this. Technically, this may not be right, but they are concerned about the subject of the protection.
Lord Henley
My Lords, I understand the concern, and I think it might be necessary for us to have further discussions on this outside the House. I think my noble friends understand the importance of proportionality—I use that word again. The example I was giving when my noble friend interrupted me was about a college that takes on half a dozen 17 year-olds being affected. It might be that if it was half a dozen 14 year-olds, things would be different. It is a question of balance which, again, we will have to look at. I was about to say that the amendment goes too far; my noble friends agree that it goes too far. They will not press it, but obviously there might be scope for further discussions in due course.
Amendment 66 could also be very wide-ranging in its effect. It sets out that a regulated activity provider may decide whether other activity that it carries out is analogous to regulated activity. It also creates a new duty on the Disclosure and Barring Service to provide information that would otherwise be provided only in respect of regulated activity for any such activity that the provider decides is similar to regulated activity. We have stated that we do not think it is right to provide barred list information for activity that is not regulated activity. We have set out in Clause 64 what activity should be defined as regulated activity in relation to children. This amendment would in effect give regulated activity providers the ability to define any activity as similar to regulated activity and request barred list information from the Disclosure and Barring Service; for example, they could designate someone who has merely the slightest contact with children in a sport or recreation setting, or an employee providing first aid as an ancillary part of their job.
We do not think that Amendment 66 does what it says on the label, as it were. Again, I might have misunderstood what my noble friend is getting at with that amendment. If she would like to have further discussions, I am prepared to do that, although the last time we had discussions it resulted in her bringing forward this amendment, so it does not necessarily always help.
Baroness Hamwee
Baroness Hamwee
My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,
“also has effect in relation to any subsequent … application by”,
the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,
“may be withdrawn at any time”.
If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.
In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view—this is where I hope to be able to give my noble friend the assurance that she seeks—is that the current drafting of the Bill achieves this policy intention. If consent has been withdrawn then, according to the terms of the clause, there is no consent and the employer would have no basis to proceed. Operationally, employers will need to confirm that they have valid consent, or they will not be entitled to carry out a check.
It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.
The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.
Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.
Baroness Hamwee
My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by “consent” is helpful, and I beg leave to withdraw the amendment.
Lord Dear
My Lords, I shall be brief. I support the amendment as set out by the noble Baroness, Lady Royall of Blaisdon, who has made a very adequate case for this change. I have changed my mind on this issue over, I suppose, the past six months or so. I had for a long time thought that the current legislation, the Protection from Harassment Act, was sufficient, but I now realise that the terminology in it is too strict. The term “violence” needs to be ameliorated in some way and the wording in the amendment that refers to “fear or alarm” would take us closer to the course of conduct referred to in many parts of your Lordships' House.
This issue has grown in modern society over the past 10 or 20 years. I do not offer any suggestion as to why that has happened. Perhaps we have, paradoxically, an anonymous society on the one hand and a society with a plethora of information in it on the other. There is certainly a growth in technology and perhaps a celebrity culture. Whether celebrity is real or imagined hardly matters; the fact that it is now possible to become the focus of someone’s attention is clearly at the root of what is proposed. I believe that we need to do something to alter this very tight definition of violence. The question of whether the wording of the amendment is too prescriptive I leave for a later debate. Personally, I think that much of the legislation coming through your Lordships’ House is far too prescriptive, and that in itself presents a trap. I hope that the Minister can take away the comments of this House, including my own, to examine what has been said, and perhaps we can return to this matter for further consideration on Report. I support the amendment.
Baroness Hamwee
My Lords, perhaps I may raise two small points. They seem almost trivial in the context but they are important and, as the noble Baroness said earlier, the opportunities for this sort of discussion are limited to Committee. I appreciate that this is existing legislation in Scotland. My first point relates to proposed new subsection (4) in the amendment, which states,
“where A knows, or ought in all the circumstances to have known”.
The existing Section 4(2) brings in the notion of a reasonable person. I read the existing law as objective and this proposal as being subjective, and I am not sure whether it is strong enough.
My second point relates to new subsection (2) of the proposal, where it would be necessary for the course of conduct to cause “fear or alarm”. Again, I wonder whether that is strong enough. What if the victim is a particularly resilient person? Should the person engaging in the conduct be able to do so because of the toughness of the victim?
Lord Sharkey
I thank the noble Baroness, Lady Royall, for tabling this amendment, whose objectives I strongly support. As noble Lords have already noted, the situation relating to stalking in England and Wales is entirely unsatisfactory. It is clear that the offence of harassment is not an effective way of dealing with the problem of stalking. It is not effective for the protection of possible victims; it is not effective for the successful prosecution of offenders; and it is not effective in the delivery of appropriate punishment for those who are found guilty.
A recent survey conducted by the members of the National Association of Probation Officers showed that the overwhelming majority of victims were in constant fear and many were physically injured. Most victims claim that there are a number of incidents before they feel they can go to the police. Often their complaints are not properly investigated, and the perpetrator’s behaviour escalates over time if there is no criminal justice intervention or treatment.
It appears that stalking behaviour is simply not recognised by the majority of professionals who have to deal with the cases. Probation staff are concerned that when sentences are handed down they are often too short for rehabilitation or treatment to occur, or even to match the gravity of the offence and its effect on the lives of victims. We should not allow things to continue as they are. The suffering caused to victims is often harrowing and sometimes life-destroying.
The current methods for dealing with the problem are clearly inadequate. However, as noble Lords have pointed out, there is an obvious way forward, which is to learn from the experience in Scotland. As noble Lords have indicated, Scotland chose not to introduce a version of the Protection from Harassment Act 1997—currently the law in England and Wales—on the grounds that the Act did not transfer powers into practice. Instead, a new law, on which this amendment is based, was passed in December 2010 creating a specific offence of stalking and offences of threatening and abusive behaviour. This legislation has the support of the police, who have themselves adopted new operational guidelines to ensure proper awareness of stalking and harassment. There are clear signs of the success of this Act, even at this very early stage.
I acknowledge that the Government take this matter extremely seriously, and I know that the consultation on the issue runs until 5 February. It is important that we learn from it. Nevertheless, I urge the Minister to take account of the strong views expressed today and the terrible plight of the victims of stalking and not to delay legislation on this issue one moment longer than is absolutely necessary.
Lord Harris of Haringey
My Lords, I think that the noble Baroness, Lady Doocey, has put forward an extremely helpful amendment. The reason for thinking that is because, tragically, there have been too many instances when minicab drivers, and indeed licensed taxi drivers, have turned out to be a danger to those whom they ferry. Those instances are comparatively rare, and of course it is much safer to use a licensed vehicle than otherwise, but the danger remains.
My only regret is that the noble Baroness, in her normal ingenious way, has not found a way to encompass what I consider to be the increasingly dangerous fraternity of rickshaw drivers in London. I am sure that a few extra words would have enabled us to have a licensing regime for rickshaw drivers on top of all this, with the added protections of enhanced record checks. I appreciate that I have now caused a flurry on the Front Bench while the correct answer as to why that is incredibly difficult is explained to the Minister. However, as I think that the noble Baroness, Lady Hamwee, is about to speak, I am sure that he will have a chance to mug up on the subject.
Baroness Hamwee
My Lords, perhaps I will give the Minister thinking time, but I was going to say that rickshaw drivers present more dangers than those which are the subject of this Bill—the noble Lord has referred to the small number of very horrific examples.
I support my noble friend. There have been important steps in licensing over the past few years, certainly in London, but legislation cannot remove every risk. A perpetrator may not previously have been caught or may just be starting on a course of action. However, the more tools that are given to employers and to the organisers of different activities, the better—within the overall objective of a sensible regime that is not overbureaucratised.
Perhaps I might make one comment, which I wondered whether I should come in with in a previous discussion when I think the Minister was accused of being unimaginative about the amendments. I can tell the Committee that at the meeting which I attended with the various sporting groups, which has been referred to, both our Minister and Lynne Featherstone made it absolutely clear that an employer or an organiser cannot abdicate responsibility to an unthinking bureaucratic process. I, for one, was very impressed at that meeting by the common-sense attitude being displayed. We were being reminded that we cannot do everything through legislation. We will do as much as we can, but we cannot do everything.
Baroness Farrington of Ribbleton
My Lords, should the noble Baroness, Lady Doocey, need additional support, I worked with the noble Baroness, Lady Gardner of Parkes, on extending the checks and the licensing to the minicabs. For some time, some of the other cab drivers resisted licensing minicab drivers. I am quite sure that the Minister will agree that, should the noble Baroness, Lady Doocey, who has presented her case strongly and got all-round support, need additional support, then I can recommend the noble Baroness, Lady Gardner of Parkes.
Interpol
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Lord Henley
My Lords, I repeat that I do not want to comment on this particular case but I think we all know which case it is, because the noble and right reverend Lord has already referred to it. As I said, it is very important to recognise that no one can be extradited solely on the basis of a red notice that has been issued by the Indonesian Government through Interpol. I repeat everything that I said earlier about it being important to keep under review how we work with Interpol, and as an Interpol member the United Kingdom Government will continue to do that.
Baroness Hamwee
My Lords, as an extension to the question put by the noble Lord, Lord Blair, are the Government satisfied that our own structures are such as to make the best use of the resources available through Interpol, and will be so when we have the reorganisation? I am thinking in particular of missing persons. The cross-matching with unidentified bodies is a very important activity, and currently the Missing Persons Bureau is in the NPIA which will be subject to changes.
Lord Henley
My Lords, Interpol is largely about exchanging information between the member countries, and that is virtually all countries in the world. However, my noble friend makes a very valuable point about the changes that are coming about through the removal of SOCA and its replacement by the NCA. I take on board what she said; it is very important that we ensure that with those changes, we still have the appropriate relationship with Interpol.
Prevent Strategy
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Baroness Hamwee
My Lords, the noble Lord, Lord Noon, has asked a most important question. In the short time available I want to focus on integration and make one point. I wonder whether the answer to the noble Lord’s question is partly characterised by the speakers list that we have tonight—10 speakers. How many of us are what my late noble friend Lord Jenkins termed “ancient Britons”? I think it is a fair bet that the eighth Baron Henley is. I do not want to make assumptions about the noble Lord, Lord Rosser, but excluding the Government and Opposition Front Benches, look at our names. Mine is because my family, not very long ago, came from Hama in Syria—a place where I am very glad not to be.
Is it that our speakers tonight feel a particular responsibility to take part, and should it rest only on their shoulders? Beyond this House, have we made assumptions about who should integrate with whom, about who needs to take active steps and who can sit back and dissociate themselves from the issue? Have we made assumptions about “us” and “them”? Have we made assumptions about what Britain today is or should be? It is not the same as when I was born. It is not the same as when Victorians ruled the world—and on that subject I have said before in the context of immigration that I find the term, “the brightest and the best”, whom we are seeking to attract, very difficult because of its implications. It takes us to the question of what we think is the Britain into which we are seeking integration. Integration, of itself, does not secure loyalty to a set of values or instil patriotism; they are more than learnt behaviours. It is about a view of society and one’s place in it, and perhaps we should be talking more about social cohesion in a wider sense.
I know that far more is going on than just the Prevent strategy. Both noble Lords who have spoken have referred to this, but I think it is important not to do anything to consolidate the widespread view that a particular ethnic background or a particular faith and terrorism are in any way synonymous.
Protection of Freedoms Bill
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Baroness O'Neill of Bengarve
My Lords, I should like to ask the Minister whether the Government considered an alternative way of reducing recourse to the DNA database that would, on the one hand, have restricted the police from searching the database except where there was a proposal to press charges for serious violence or a serious sexual offence, and on the other hand where the person arrested requests that the database should be searched for the purposes of exoneration.
Baroness Hamwee
My Lords, I am so glad that I prompted my noble friend Lord Phillips to speak before me because he put into words much better than I could have done things that I was trying to articulate in my own mind. He mentioned the possibility of a 100 per cent compulsory database, and I too had been working towards that as a question. I cannot, however, follow the suggestion of a voluntary database. I am not a psychologist and I cannot put myself into the mindset of an offender, but it is difficult to believe that a voluntary database would be any sort of deterrent at all.
Lord Campbell-Savours
My Lords, I thank the noble Baroness. It would dilute the stigma.
Baroness Hamwee
The noble Lord, Lord Soley, talked about deterrence in the context of a voluntary database. I take the point about stigma, but only a little bit.
On the requirement for further evidence sought in the amendment, as the noble Lord, Lord Condon, has said, the science and the technology are both galloping forward very fast, and logically one could make an argument for continually looking for further evidence as the science goes forward and never coming to a conclusion. It is always possible to ask for more evidence, and we will hear from the Minister what evidence the Home Office has looked for. However, I would like to ask him in this context about the post-implementation review mentioned in the impact assessment. There are a number of boxes under that heading that are not completed. Perhaps he can tell the Committee something about the establishment of the criteria for the assessment under a post-implementation review, because that would be helpful.
I am not sure that the amendments in this group that seek to extend the period are entirely consistent. We are in Committee, so I understand that, but to seek to decide whether to increase or decrease the time period while at the same time calling for further evidence before implementing this part of the Bill does not quite seem to hang together. However, that is probably a picky and unworthy argument because, as my noble friend said, the noble Baroness has raised matters that are extremely important.
Lord Dear
My Lords, we have discussed the rapid advances in DNA technology, but a fact that noble Lords may wish to take note of is that we are literally on the brink of a breakthrough in DNA analysis whereby, although the same sample being tested in the laboratory does not produce a hit on the database, it will nevertheless produce a pretty good description of the person who has given the sample. That will move the debate into a whole new area. I say that to put the record straight on just how fast databases are moving forward.
There is no doubt that if legislated for as we are considering, DNA technology will undoubtedly bring some convictions from cold case reviews. Indeed, that has already been mentioned from the Cross Benches. However, I have to say that, as a proportion of the total number of cases dealt with and convictions brought each year, the number will be relatively very small. Undoubtedly these reviews will frequently focus on serious cases involving rape or violence where the victim has suffered enormous trauma.
Having concluded my brief opening remarks, I have little else to say other than that I support the stance taken by the noble Lord, Lord Phillips of Sudbury. There has been far too much intervention in the privacy of the individual. We are currently reading in the newspapers about the conduct of the Leveson inquiry, which is yet another example of possible intervention in another sphere. That thrust of the interventionist state into our lives is something that this Bill seeks to reverse. Although this is an emotional issue, it raises great interest in the criminal justice system and in my former service, the police service. I shall make very few new friends in the service when I say that I believe that the safeguards proposed by the Government in trying to search for this balance are appropriate. I therefore support what the noble Lord, Lord Phillips, has said as well as the general thrust of this Bill.
Baroness Hamwee
“(c) any biographical information relating to the material referred to in paragraphs (a) and (b).”
Baroness Hamwee
My Lords, I shall speak also to Amendment 3. These are among a number of probing amendments that I tabled following receipt of a briefing from the Information Commissioner, which I am aware has been sent quite widely to your Lordships. Therefore, I hope I do not need to spend too long on any of the individual items. It seems that I need not consider with too much suspicion or cynicism whether the Information Commissioner might have got hold of the wrong end of the stick. I am very happy to rely on a briefing from him.
Amendments 2 and 3 would add references to biographical information relating to the material dealt with by Clause 1. The commissioner is concerned that, although there is provision to delete fingerprints and DNA profiles, allied biographical information that is held on the police national computer or the police national database is not referred to. Perhaps the Minister can help me with the basis of these amendments. Is the PNC record also deleted when the DNA profile is removed? At present, records held on the PNC are readily accessible. The noble Lord, Lord Dear, may tell me that I am wrong, but it has been suggested that because that information is there access is frequently used to run a name check on individuals who come into contact with the police. Noble Lords will understand the inaccurate assumptions that may be made as a result of this.
The fifth principle of data protection states:
“Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes”.
It seems to me that we should be looking at biographical information alongside the technical information. I beg to move.
Lord Henley
As my noble friend has explained, these amendments were tabled following receipt of a letter from the Information Commissioner, which I think a large number of us have seen. They seek to amend Clause 1 by extending the scope of the provisions for deleting fingerprints and DNA of those arrested but not charged or subsequently not convicted to all police records held on that individual. For ease, I shall refer to these records as “arrest-only records”. In our view there is no need to extend the scope of the clause to cover arrest-only records. What is retained on police records should continue to be an operational matter for chief police officers to decide.
As your Lordships may be aware, the Association of Chief Police Officers has already issued guidance to forces in the light of the Supreme Court judgment earlier this year in the case of GC & C v the Commissioner of Police of the Metropolis. ACPO issued a letter on 16 June to chief officers which said that,
“if the biometric data is deleted or destroyed, then there is no need—and therefore no justification—for the retention of the arrest record on the Police National Computer. Therefore, if the biometric data is to be deleted or destroyed, then so must be the arrest record on the PNC”.
Therefore, in effect, ACPO has already put a deletion process into effect for arrest-only records held on the PNC. To go further and then delete all records from every other police database, whether national or local, would, in our view, be a step too far. On balance we think that the approach taken in the ACPO letter is the correct and appropriate one. It creates the correct balance—I apologise again for using the word “balance”—between civil liberties and public protection. It also creates consistency between the retention of arrest-only records on the PNC and the treatment of fingerprints and DNA profiles in the Bill.
We have to appreciate that, once the details are removed from the PNC, front-line operational officers will not be able to tell whether an individual has previously been arrested and not subsequently cautioned or convicted. They will not have access at that point to the police national database nor will they necessarily be able to check local records. That, we believe, provides the necessary safeguards for individuals. The fact that a person was arrested or went to trial is a matter of fact and keeping those details on databases that are not readily available to all police officers means that that information will not be visible to the officer making the stop.
Going further and deleting all arrest-only records from all databases means that the police would have no way of knowing that an individual had come to their attention before. It would also mean that the enhanced criminal record checks could not show details of those arrests where they are relevant to a particular application. Such an approach would significantly weaken the public protection afforded by the criminal record regime. I hesitate to refer to it, but it could result in another Huntley-type case where relevant information about previous suspicious behaviour is not disclosed. I accept that in that particular case the records were not effective in preventing what subsequently happened, but that does not alter the fact that the records were there to show a history of arrest linked to a certain type of offending.
I appreciate that at this stage they are probing amendments, but their effect would be that all police databases would be reduced simply to holding details of cautions and convictions. All other intelligence would be removed. In our view, that would hamper the ability of the police properly to protect the public, and for that reason I cannot support the amendments. I therefore hope that my noble friend will be prepared to withdraw the amendment.
Lord Henley
My Lords, again I repeat the word “balance”. It is a question of balance as to what is appropriate. Again I stress that it is a matter of fact, referring to the noble Earl’s example, that that person has been arrested. He might not have been appropriately arrested and the noble Earl might feel that that should not have happened. However, the simple fact is that he was arrested and there are occasions when keeping that information may be of some use.
Baroness Hamwee
My Lords, like the noble Earl, I blinked at the words “a step too far” and I appreciate that the Minister went on to try to explain that. It would be only right to read his explanation in order to seek to understand it. However, I have more questions now than when I introduced these amendments.
I should also say that I have a little difficulty in relying on ACPO guidance, if I have correctly understood its status. There is no question about whether it is proper. However, it is one thing for a statute to allow something and for ACPO then to withdraw a little from it, but that is not as good as the statute being clear. I was also not sure how that lay with the Minister’s comment about this being an operational matter for the police. Having added to the list of questions in my head, I will of course withdraw the amendment. This issue may be something that I can discuss with the Minister between this stage and the next. A lot of complications and procedures are not evident in the Bill, which of course deals with just one aspect of the way that the police organise themselves. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendment 22. These amendments deal with two provisions about speculative searches. Clause 1, on the destruction of fingerprints and the DNA profile, and Clause 22, on the destruction of samples, state that they do not prevent a speculative search,
“within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable”.
My amendments relate to the term “desirable” and propose wording taken from Clause 15, whereby, instead of when it is “desirable”, fingerprints and DNA can be kept when,
“necessary for the prevention or detection of crime, or the investigation of an offence”.
Without wanting unduly to hinder the police's discretion, it seems to me that those two provisions are very wide. The Explanatory Notes states that the material could be retained for a “short period”. I do not read that into the two clauses. Perhaps the Minister can help me with that and about what limitations there might be on this apparently wide provision. I beg to move.
Lord Henley
My Lords, I have some sympathy with what I think the noble Baroness is trying to get at with the amendments, certainly from my understanding of the letter from the Information Commissioner, but we believe that her amendments would both seriously undermine the effectiveness of the national DNA database and significantly increase the cost of the administration of the system at a time when police budgets are under significant pressure.
In terms of effectiveness, we are advised by the police service that the key point in the taking and retention cycle for DNA and fingerprints is the carrying out of a speculative search immediately following arrest and sampling. For those of your Lordships who are not familiar with this process, it involves the comparison of the newly-taken DNA and fingerprints with material from previous crime scenes and with those whose biometrics are retained following conviction or, in the limited circumstances that we will be discussing shortly, from those suspected but not convicted of serious offences.
It is that speculative searching process which results in the identification of those who have already committed crimes, which I would hope that all of your Lordships would agree is a vital public protection measure. To give an example, a speculative search was undertaken on the DNA profile of Mark Dixie in June 2006, when he was arrested following a fight at the pub where he worked. He was not charged with that offence, but his DNA was matched to biological material left at the scene of the murder of Sally Anne Bowman the previous September. As a result, he was subsequently convicted and sentenced to life imprisonment.
The Government consider that carrying out a speculative search in each case where DNA and fingerprints have been taken on arrest is vital to the effectiveness of the database in identifying such crimes and far outweighs any additional intrusion in Article 8 terms. Indeed, in its recent report on the Bill, the Joint Committee on Human Rights commented at paragraph 45 of its report that,
“an additional final search before destruction is unlikely to pose such an additional interference to create a separate violation of Article 8 … which could not be justified”.
I appreciate that my noble friend does not want to stop such searches, merely to require the circumstances to be considered before a search is carried out. As I said at the beginning of my remarks, it would add to the delay and cost of each arrest for such consideration to be given. There were nearly 1.4 million arrests for recordable offences in 2009-10, a figure I gave to the House earlier today at Question Time. Thus, the additional time required for police officers to consider whether searches were necessary would run to many thousands of hours and could well result in many thousands of additional hours spent in detention by those being investigated.
I can assure my noble friend that we considered this issue carefully in bringing forward our proposals and we consider that carrying out a speculative search in every case is an appropriate use of the DNA and fingerprints taken on arrest. For those reasons, I cannot support Amendments 4 and 22 and I therefore hope that my noble friend will be prepared to withdraw the amendment.
Baroness Hamwee
My Lords, indeed I shall do so. When the Minister said “cost”, I wrote the word “balance” because, as he said, it has come up in every line of every clause and on every page. I think I am left with understanding that the short period to which the Explanatory Notes refer—I appreciate that they are not binding—is the period for which the material is retained. The Minister is nodding at that. Having clarified that, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) For the purpose of this section, an investigation is concluded when it is so certified by the responsible chief of police.”
Baroness Hamwee
My Lords, Clause 2(2) provides for the retention of certain material,
“until the conclusion of the investigation of the offence or”,
as the case may be, the conclusion of proceedings, where proceedings are taken. My amendment seeks to define what is meant by the conclusion of an investigation for the purposes of this clause.
“Conclusion of proceedings” seems to be relatively clear. Presumably one gets to the end of a case or the end of an appeal. Alternatively, when an appeal is not possible, I suppose there is always the possibility of a case being reopened by the Criminal Cases Review Commission, but I shall not try to go there. However, we also ought to be clear about when an investigation is regarded as concluded. There has already been a good deal of reference today to cold cases. How cold does a case have to be before it is concluded? If it is cold but not solved, is it still unconcluded? I simply suggest, partly as a way of exploring this matter, that an investigation should be regarded as concluded when it is certified by the responsible chief of police. I beg to move.
Lord Dear
My Lords, I have the greatest respect for the noble Baroness, Lady Hamwee, but I have to say from practical experience of commanding the largest force in the British Isles other than the Metropolitan Police—having previously headed the operations department of the Metropolitan Police—that in practical terms, forgetting the philosophical benefits or disbenefits of the amendment, it does not stack up.
There are thousands of offences on police books and well over half of them remain undetected. Therefore, seeking a certificate for every single one of them when one believed that an investigation was concluded would frankly be a bureaucratic nightmare. Quite apart from that, at the very serious end of offences it is not uncommon to have 50, 80 or 100 detectives and others working on an investigation. As the case winds on, that number will be run down until, months or even years later, you finish with perhaps five or six. There will come a point when everyone will know that the investigation has stopped because they will simply have run out of avenues to explore, but in my experience no chief officer would wish to say categorically, “It is finished”, because that would be slamming a door in the face of victims. We have already spoken in your Lordships’ House about the need to balance the rights and feelings of victims among other things, and that is absolutely right. I do not think that any chief officer of police would wish to say, “We have now certified that this is finished and as far as you, the victim, are concerned—or you, the general public, are concerned—we have now closed our books”, and I do not believe that the public would wish to hear it.
Therefore, with the greatest respect and although I understand where the noble Baroness, Lady Hamwee, is coming from, on practical and philosophical grounds—and, if those fail, then certainly on grounds of sensibility to feelings—the amendment does not have my support.
Baroness Stowell of Beeston
My Lords, I am very grateful to my noble friend Lady Berridge for her intervention. I am pleased to confirm that her analysis of the subsection preceding the one we are discussing is correct. I am also grateful to my noble friend Lord Newton. I will take his advice, consider his points and be sure to write to him. I have been given some comfort on the way in which we may be able to respond to his query by the intervention of my noble friend concerning the subsection preceding the one my noble friend Lady Hamwee seeks to amend.
Baroness Hamwee
My Lords, one always knows about one-third of the way into a sentence that a “but” is coming. I anticipated it when the noble Lord, Lord Dear, started to make his comments. I entirely agree with the noble Baroness, Lady Berridge, about the application of these provisions. That is a safeguard, but it seems to me that it is more of an answer to the noble Lord, Lord Dear, than it is to me.
Of course I understand the practical problems. I said a few minutes ago that all the amendments are probing. The problem often is that when one tables an amendment to probe, it is taken as if one means every word. I am looking for an answer to my underlying question and I am not sure that I have yet heard it. What worries me is that even on the fairly narrow track that the noble Baroness, Lady Berridge, identified, there is the possibility of driving a coach and horses through what we all think we are agreeing this afternoon. I do not seek to apply more bureaucracy, but I do seek clarity. I am not yet clear, but there are more stages and I will not make more of a nuisance of myself at this stage. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 15, 16 and 17. These are identical amendments to Clauses 4, 5, 6 and 7, which permit the continued retention of material in specified circumstances indefinitely, irrespective—at any rate in statutory terms—of any ongoing necessity for crime prevention and detection purposes.
I have referred before to the fifth principle of data protection, which I have quoted, and my amendments would permit retention for as long as is necessary for the prevention and detection of crime, investigation of an offence or the conduct of a prosecution. That is the wording used in Clause 16, which I am not seeking to amend, and which the Information Commissioner has told us more closely accords with the requirements of the Data Protection Act.
I may be told that there is too much bureaucracy involved in this but it would be appropriate for the Committee to hear an explanation from the Minister as to why indefinite retention is allowed in the context of the generally wholly welcomed provisions limiting retention. I beg to move.
Lord Henley
My Lords, I hope to deal with this issue relatively briefly. My noble friend has got it right when she refers to additional bureaucracy. If we move from unconditional indefinite retention to a necessity test, as is suggested in her amendments, this would require the police to keep under continual review some 4.5 million or so convicted individuals whose DNA is retained on the national DNA database, as well as the 3 million or more whose fingerprints are held without a DNA profile. That would be a huge administrative exercise which the police would not be happy to take on.
My noble friend made a point about why we are retaining it indefinitely for certain people and not for others. Recently published research notes that, at least on average, conviction rates for individuals with no prior convictions will be lower than for individuals who are proven offenders. That is why we believe we are right in retaining material from the unconvicted only in certain specific circumstances, as we discussed earlier, while retaining the material from all those with convictions for recordable offences. Such retention is preventive, not punitive. It is done in respect of a group of individuals who pose a considerably higher risk of future offending—significantly higher than that of the general population—because of their past proven criminality.
I hope that with those assurances—that it is a group more likely to offend in future and that it would be a massive bureaucratic exercise for the police to undertake—my noble friend will accept that her amendments are unnecessary.
Baroness Hamwee
I am not sure about their not being necessary, but I can see they may be undesirable. I shall not comment on police happiness.
Lord Henley
It is not purely police happiness—it is also police cost. If my noble friend’s amendment were accepted, looking at 4.5 million entries on an annual basis would divert an awful lot of police man hours away from the job.
Baroness Hamwee
My Lords, I am being inappropriately flippant in a serious context. Perhaps I had better just beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I am not sure whether I go down the route of paying the piper but the question of accountability, which this amendment raises, is immensely important. Parliament has decided over the years to agree the appointment of a number of commissioners to provide oversight. For that oversight to work in the best way, the line of accountability is one that one has to look at. I am not sure whether having a single commissioner is practicable, but the issue highlighted by this amendment is a very important one and I am glad that the noble Earl has brought it to the Committee.
Baroness Stowell of Beeston
My Lords, as the noble Earl, Lord Erroll, has explained, this proposed new clause seeks to combine a number of distinct statutory commissioners into a single privacy commissioner. As the noble Earl predicted, I am afraid that the Government are not persuaded that any benefits which may arise from such a merger would offset the disadvantages. Each of the five commissioners listed in subsection (3) of the proposed new clause requires a high degree of knowledge of relevant legislation and procedures to operate in specialist and technical areas.
Before I explain why the Government propose to set up the commissioners in this way, I will address the issue of accountability, as it is one that my noble friend Lady Hamwee raised as well. The noble Earl suggested that his privacy commissioner should be directly accountable to Parliament. The existing commissioners are independent officeholders and there is no question that they discharge their functions without fear or favour. If there were a question of a conflict of interest—I do not accept that there is—it would apply equally to a situation where the privacy commissioner would be directly accountable to Parliament. Parliament is subject to the Data Protection Act and the Freedom of Information Act, and thus to the jurisdiction of the Information Commissioner, so a conflict of interest could equally arise if he reported directly to Parliament. The existing accountability arrangements work well and I see no reason to change them.
Going back to the five commissioners, there is no doubt that in some cases the work of the various commissioners can be related but, in each case, there remain specific and crucial differences where their work remains distinct. To roll up all of the functions of the various commissioners would be to risk watering down the skills and expertise that are brought to bear in each of the areas. Moreover, given the wide diversion of roles and responsibilities of the five commissioners listed in the proposed new clause, I am not convinced that it would be possible for a single individual to provide adequate oversight in any given area—a point which I think that my noble friend Lady Hamwee made.
If a privacy commissioner were to be appointed, I envisage that he or she would quickly need several deputy commissioners, or a large body of support staff, to oversee the specific areas currently overseen by separate individuals. This would create an unwieldy body which, in all probability, would have less influence and impact, compared with the existing commissioners operating in niche areas. We can take the Interception of Communications Commissioner as an example of the specialist knowledge required in this area. That commissioner provides oversight of the intelligence agencies and law enforcement authorities by keeping under review their use of interception powers and their powers to acquire communications data. The role is very specific and the commissioner’s powers to require disclosure by the intelligence agencies, and others, of highly classified information means that it is a highly sensitive post that could not be amalgamated with a range of other, unrelated commissioner functions.
That said, we fully accept that there is a need for these various officeholders to work closely together, and I assure your Lordships that this is already happening. The Public Bill Committee that considered this Bill in the other place heard testimony from the Information Commissioner and the interim CCTV regulator. Both commissioners were clear that where their functions touched on similar areas, they remain adept at establishing and maintaining effective working relationships, so that they can complement rather than duplicate the work of the other. I see no reason to doubt why this cannot continue to be the model in the future.
While there is certainly some common ground between the work of the new Surveillance Camera Commissioner and the Information Commissioner, there are also important differences. The Information Commissioner highlighted, in his evidence to the Public Bill Committee, that his consideration of CCTV is limited to the sphere of data protection and, as such, that his office is not concerned with the effective use of cameras. Indeed, the commissioner saw this separation of functions as advantageous, stating,
“if you are specifically identified as Mr Privacy and expected to come down on the privacy side all the time, it is difficult to make judgments about the release of official information”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 97.]
Furthermore, the noble Earl might remember—I know that he has a great deal of experience in this area—that public confidence in CCTV is driven by both the proportionality and the effectiveness of deployment. The public want, rightly, to see that when surveillance cameras are deployed they help to bring criminals to justice.
In that same evidence session, the deputy Information Commissioner stated that,
“if the cameras do not work, we are not concerned, because cameras that do not work cannot intrude on someone’s privacy and that is what our driver is”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 99.]
I would therefore be concerned about having all these functions under the umbrella of a privacy commissioner. It is important to note that the Information Commissioner plays a key role not only in making sure that personal data are properly protected but that information is freely available to the public in accordance with freedom of information legislation. A single privacy commissioner would undoubtedly tilt the overall balance of the role to the detriment of the Government’s objectives to promote openness and transparency.
In short, it is our view that the five commissioners that are the subject of the amendment all undertake sufficiently distinct roles to justify their separate identities. Where their roles interconnect, I am confident that they will, as now, work together effectively to ensure that they complement rather than duplicate each other’s work. We will of course keep the landscape of commissioners under review but, for the reasons that I have set out, I am not persuaded of the case for a single privacy commissioner. I hope that the noble Earl accepts these arguments and will be prepared to withdraw his amendment, but I am grateful to him for putting it forward in order for us to discuss these matters.
Baroness Hamwee
“( ) For the purposes of this section, a person shall not be considered to have consented to the taking of section 63D material unless that person has been fully informed of its potential use and retention.”
Baroness Hamwee
My Lords, my amendment deals with informed consent. It would provide that a person is not considered to have consented to the taking of material without having been fully informed of its potential use and retention. I am hoping that the Minister will tell me that this is not necessary because that happens and will happen. If I am correct in that assumption, I look forward to hearing on what basis the information is given, but if I am not correct, I look forward to assurances regarding how that will be put in place. I beg to move.
Baroness Royall of Blaisdon
My Lords, I do not wish to return to our earlier discussion about the desirability of a voluntary or mandatory DNA database. However, I seek an assurance from the Minister, pursuant to the amendment of the noble Baroness, Lady Hamwee, that citizens will still be able to give their DNA voluntarily should they so wish. I know that my right honourable friend David Blunkett did so to show that the DNA database was not something to be feared and that there was no stigma related to it. Listening to the debates in the Chamber this afternoon, I feel even more strongly about the retention of DNA now than I did before. I might well go along to a police station and voluntarily give my DNA.
Baroness Hamwee
My Lords, that is very helpful. As the noble Earl has said, there are consequences of which not everyone is always aware. His point about the police understanding what they are doing is an important factor. I look forward to the script of the sitcom of the noble Baroness, Lady Royall, turning up at a police station and saying, “Please will you take my DNA and record it”. I think that they might be a little baffled but no doubt she will take Hansard with her. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) Destruction of copies of section 63D material under this section must be processed individually.”
Baroness Hamwee
My Lords, the destruction of material by way of batches, and what the material was which was to be destroyed, was dealt with in Committee in the Commons. Reading the debate of 5 April after I had received the Information Commissioner’s briefing, it seemed to me that the discussion slightly petered out. My Amendment 21, which would provide for copies to be processed individually, is tabled to enable the Minister to give assurances—no doubt he will seek to do so—that the deletion of all DNA profile information will be the norm and that retention will occur only in exceptional circumstances. I understand from the debate in the Commons that there are some practical issues around how destruction is dealt with. Perhaps the Minister can reassure the Committee in regard to the subject of the amendment. I beg to move.
Lord Henley
My Lords, my noble friend is again right when she says that there are some technical problems with this issue. I shall say a little about that in a moment once I have set out the position. It might help if I set out a little of the background in this area. Because of the way in which DNA samples have historically been processed in batches—typically of 96, I am told—it is impractical to delete all processing records held within a forensic science laboratory, as batches will inevitably contain a mixture of profiles from convicted and unconvicted individuals, and records must be retained for evidential purposes of convicted individuals, not least in the event of a subsequent appeal or referral to the Court of Appeal by the Criminal Cases Review Commission.
Action is already under way, led by the National DNA Database Strategy Board and the Protection of Freedoms Bill Implementation Project Board, chaired by Chief Constable Chris Sims on behalf of ACPO, to address the potential for relinking records by removing any link between police barcode numbers and laboratory processing records. One forensic science provider already does this. The strategy board is already working with the laboratories to make this change by the middle of next year. This will break the link between the police and laboratory records and prevent any illicit relinking of names to profiles. The revised procedures will apply to both new and existing samples. From mid-2012, it will be impossible to carry out this relinking. Once the forensic science provider is informed that an individual’s DNA profile has been removed from the database, the link between the police barcode and the laboratory reference will be broken and restoration will not be possible.
None the less, we understand the concerns that have been expressed in this area, and my honourable friend the Minister for Crime and Security recently met representatives of the company which supplies the DNA profiling machines which produce these interim records. They are working on a proposal to enable the deletion of these records rather than merely breaking the links as I have described. If the cost of doing so is not wholly excessive, we will require the destruction of these records. I hope that my noble friend will bear with me for a while until those discussions have been completed and the company can tell us what will be physically possible and what will not be possible. In the mean time, I hope that she will be satisfied by the fact that we feel that we can break the link between the police barcode and the laboratory reference. Once we have broken that link, it will not be restored. Therefore, Amendment 21 will not be necessary.
Baroness Hamwee
My Lords, that is very helpful information and updating. I suppose the obvious question is whether the Minister is asking me to bear with him for a period which may be longer than that between Committee and Report stage. I do not know whether he has been informed of how long the investigations may take.
Lord Henley
I certainly cannot guarantee to do anything between Committee and Report and I doubt even necessarily between Committee and Third Reading. We will do what we can. If I can bring any further intelligence to the House in the Bill’s later stages, I will certainly do so. However, it would be wrong for me to give any assurances at this stage. The important thing to say is that we can at least break the link between the police barcode and the laboratory. Whether we can do something better will depend on what the company manufacturing these machines manages to do.
Lord Henley
I will have to take advice on this but my understanding is—I will write to my noble friend if I am wrong about this—that once we have broken the link between the police barcode and the samples, it is broken and cannot be repaired. However, if I am wrong on that, I will let my noble friend know. As regards whether we can get improvements made to the machines so that we can properly delete these things, that will have to wait on the discussions to which I referred earlier.
Lord Henley
I suppose that a case could collapse just because one bit of evidence fell apart, although in the main there would be other bits of evidence. However, the noble Earl, Lord Erroll, is right to make that point.
My noble friend, in moving the amendment, is obviously concerned about the costs of the Bill to the police and what that might do in diverting resources away from front-line policing. That has also been a concern of mine, and it is why, for example, I resisted an amendment from my noble friend Lady Hamwee suggesting that we should be looking at all the entries on the database on an annual basis. That certainly would have had major cost implications.
The reasoning behind my noble friend’s amendment is to ask the commissioner to look at a number of issues, including the cost of implementing the Government’s proposals. I can see why she wants to do that—I understand that she is a member of the GLA—particularly in view of the costs for the Metropolitan Police Authority, which, by virtue of its size, will have the largest single bill for implementing the proposals set out in this chapter.
I have to say to my noble friend that the Government have been working very closely with ACPO, the National Policing Improvement Agency and private sector forensic science providers to keep the cost of our proposals as low as possible. We published a very full impact assessment of these proposals in February this year, setting out a transition cost of just over £10 million. I appreciate that my noble friend Lady Hamwee had some criticisms of one part of the impact assessment, and I said that even Homer nods from time to time. I contrast that figure of £10 million with the previous Government’s impact assessment for, say, the provisions in the Crime and Security Act, which had an estimated transitional cost of over £50 million. Therefore, I think that the Committee will see that we have done much work in this area.
We are not convinced that the proposed post-implementation review by the new commissioner would add significantly to our understanding of this issue, and it would impose an additional bureaucratic burden not only on him but on hard-pressed police forces. I also say to my noble friend that I believe the commissioner’s first six months in office are going to be very busy indeed in terms of examining a number of applications for extended retention and setting out guidance under Clause 22 of the Bill, without giving the new officeholder the additional task of a financial review.
That said, Clause 20(6) confers on the commissioner a general function of keeping under review the retention and use of biometric material, so it would be within his remit to examine the impact of the retention periods provided for in the Bill without the constraints imposed by the amendment. I certainly reassure my noble friend that we take very seriously the issues highlighted by her amendment but we do not think that it is necessary.
My noble friend also touched on some of the issues relating to the batch processing of DNA samples, with which I think we dealt on an earlier amendment. Again, I reassure her that we think it will be physically impossible to relink anything held on a police file, including the original DNA sample barcode, with any information stored in a forensic laboratory. However, as I said, more work needs to be done in that area, and we will certainly do that in due course. I hope to be able to let the House know more about that at a later stage if at all possible.
Therefore, I hope that my noble friend will feel that there are sufficient protections in the Bill and that she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before my noble friend responds, perhaps I may say to the Minister that he really should not take every question from me as being a criticism. Questions are sometimes completely straight questions.
Lord Henley
Of course questions from my noble friend are not criticisms. I hope that I answer them as well as I am able to do.
Baroness Hamwee
Baroness Hamwee
My Lords, I have just realised that I am about to ask my noble friend a question—my other noble friend.
The amendment would provide that as well as publishing the governance rules of the board, the Secretary of State would publish rules governing its composition. My question is an entirely simple one and there is nothing to be read between the lines. What will be the composition of the board and how will it be brought into the public domain? My noble friend Lady Stowell may say that governance covers composition, but clearly the membership of the board is important. It needs to be appropriate to its functions and the interests reflected in the composition are clearly a matter of public importance and concern. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend for this amendment and I hope that my response will provide the reassurance that she is looking for. This is another issue that was covered in the letter from the Information Commissioner sent to several noble Lords before our Committee stage.
The simplest thing for me to do in the first instance is refer to paragraph 130 on page 31 of the Explanatory Notes, which states:
“The principal members of the Board are the Association of Chief Police Officers, the Association of Police Authorities (in future, following the enactment of the Police Reform and Social Responsibility Bill, a representative of Police and Crime Commissioners) and the Home Office, but there is also an independent element to the Board from non-police bodies, such as the Information Commissioner and the National DNA Database Ethics Group”.
I am happy to put on the record that the governance rules set out in new Section 63AB(6) of the Police and Criminal Evidence Act 1984, as inserted by Clause 24, will include the full membership of the board and that members will continue to include an independent element in the form of representation from the Information Commissioner’s Office and the national DNA database ethics group. If any of your Lordships have any suggestions for others that might join the board to strengthen the independent element, I will be happy to receive them. Having heard my remarks, I hope that my noble friend Lady Hamwee will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful for that. It did not occur to me to look at the Explanatory Notes. My noble friend is quite right; I should have done so. Her emphasis on the independent element from non-police bodies is important. As she read out that list it sounded police-heavy. The police have to operate the system so I am not suggesting that they should not be properly represented but as the debates today and throughout the passage of this Bill amply illustrate—if we need that illustration—it is not only the police who have an interest in these provisions and in the operation of handling DNA material, which is the subject of these various clauses. I am not sure that I would feel that it is adequate that there is simply “an independent element” from the bodies referred to. I would like to see “an independent element”—period. There are plenty of organisations which call on the services of, if not the great and the good—they are not necessarily the best—those who are interested and willing to give the public service that is required for this sort of activity, using the wisdom and judgment obtained through public life, or simply through a period of years.
What can I refer to? We have just been abolishing them but standards committees in local government have used an independent element. I am sure that there are plenty of examples but they always escape you on these occasions. Perhaps I can take what my noble friend has said as something of an invitation to explore this a little after the Committee stage. To have elements from what might be regarded as the usual suspects—I do not say that pejoratively—may not serve the purpose as well as we could.
Baroness Stowell of Beeston
I just want to re-emphasise that I would be grateful to any of your Lordships who have any suggestions to add on the independent element of the board after today’s debate.
Baroness Hamwee
My Lords, I would also say that it is not uncommon for there to be advertisements for applications using the Nolan principles for an independent element to boards such as this. Perhaps after this evening I shall try to come up with some other examples. I am grateful for that and I put on the record that I am grateful to the information commissioner for the thoughtful way in which he and his office have briefed your Lordships. I warn the government Front Bench that I have not read through to the end of his briefing so there will no doubt be more to come in future parts of the Bill. Having said that, I beg leave to withdraw the amendment.
Violence against Women and Girls
Baroness Hamwee Excerpts(12 years, 8 months ago)
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Baroness Verma
My Lords, the noble Lord of course knows that when the legal aid Bill comes before us, we will have some in-depth responses. I will leave it to that debate before answering.
Baroness Hamwee
My Lords, does the Minister share my concern about something of a “canteen culture” which persists among junior police officers, who are often the first point of contact for an abused woman? Does she share my concern about the need for training of junior officers in domestic violence issues, so that the good work done by ACPO and the Home Office filters down?
Baroness Verma
My noble friend is absolutely right. That is why we are working very hard with police forces across the country to ensure that they are made fully aware of how they need to respond, very sensitively, to issues of sexual and violent abuse.
Terrorism Prevention and Investigation Measures Bill
Baroness Hamwee Excerpts(12 years, 8 months ago)
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Lord Lloyd of Berwick
My Lords, I find myself unable to support the argument that has been put forward by the noble Lord, Lord Hunt. Indeed, it seems to be very much a repetition, on a rather smaller scale, of an argument that we heard over and over again on Report, all based on the views of one particular senior police officer. I for my part am completely satisfied with the view that has been taken by the Government. My general view is that the sooner we get rid of the old legislation, the better.
I have one other problem, which I do not know whether the Minister will be able to answer. It turns on paragraph 2 of Schedule 8 combined with paragraph 7 of Schedule 8. As I understand it, paragraph 2 provides that the old law will continue to apply to those who are currently under control orders. Paragraph 8 says that that will be so even though the 2005 Act would have expired, quite apart from this Bill repealing it. Is that the position? If so, when do the new provisions begin to apply to those who are currently under control orders? Every controlee will ask himself, “Have I been affected by this Bill or not?”. In particular, he will ask himself when the two-year period under Clause 5 starts in his case. It seems that the control order will continue to apply, but it cannot be kept in place indefinitely under the provisions of an Act that we have repealed.
Baroness Hamwee
My Lords, like the noble and learned Lord, I have made it clear that the sooner control orders end the better. Will the Minister confirm that the extension to 42 days is not a matter of giving the police another two weeks to get their arrangements in order but because it became clear that the period of commencement would be within the Christmas and new year holiday period, which was not wholly convenient? Forty-two days would take the period into the new year as a matter of convenience. That is what I understood to be the explanation when we heard about this last week.
Lord Henley
My Lords, I shall start with the points made by the noble Lord, Lord Hunt of Kings Heath. As always, my first advice to him would be not to believe everything that he reads in the papers. Having said that, I am grateful to him for raising the point. It is very important and it gives me the opportunity to explain why we are doing this. I set out what is behind Amendment 4 when I dealt with that.
My noble friend Lady Hamwee asked whether we were extending the detention period to 42 days just because the police asked for it or because the police asked for it because it was over Christmas and new year. I can assure her that that was the point that the police made to us: things will be slightly harder if this happens then than they would be if it happened on some other occasion.
The police service has worked very closely with both the Security Service and the Home Office throughout the legislative process to ensure that all the plans and preparations that are being made are tailored to the Bill in the appropriate manner and to ensure that everything is as it should be. The Metropolitan Police has also confirmed to the Home Secretary that it has put in place arrangements to manage that transition from control orders to TPIMs. Indeed, the Home Secretary received detailed briefing as recently as Monday from the Metropolitan Police on the transitional plans that had been drawn up. The Home Secretary is fully aware of what is going on. As I made clear on Report, we recently received advice from the Metropolitan Police that, in reviewing its plans as they were being developed, the extension of that period over Christmas and new year from 28 days to 42 days would be required to ensure that the necessary arrangements could be put in place. It is simply a safeguard to ensure that smooth transition.
In relation to paragraph 2 of Schedule 8, the noble and learned Lord, Lord Lloyd, asked whether the controlees themselves would ask questions about how they were being affected. I would prefer to write to the noble and learned Lord, if I may, to make sure that I get that absolutely right.
I end by giving an absolute assurance to the noble and learned Lord, the noble Lord, Lord Hunt of Kings Heath, and the entire House that all we are doing is absolutely necessary. Whatever happens, we will not put the security of the country at risk. We have taken advice from the police and the security services on this matter. It was suggested that we should make this extension from 28 days to 42 days. That is what we are doing.
Terrorism Prevention and Investigation Measures Bill
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Lord Condon
My Lords, I, too, support the amendment proposed by the noble and learned Lord, Lord Lloyd, on the grounds that have already been spoken of, but also on the very pragmatic grounds that, every time we as a country step beyond the normal bounds of the rule of law, or contemplate extra-judicial measures, or contemplate allowing the Executive to have powers in this area, we risk alienating young men and women who may be wavering around, or contemplating being drawn into, terrorism. We create war stories and martyrdom. Even though these are small in number, they can be used to recruit vulnerable young people into supporting or contemplating terrorism.
History tells us that every time Governments—here or abroad—have contemplated extra-judicial executive powers, in the long term those powers have tended to work against us. I understand the reasons why Governments want to maintain public confidence by being and appearing to be very tough on terrorism, and the pragmatism of police forces and intelligence services which want the widest battery of powers to be available to them immediately as they contemplate their response to terrorism. However, I fear that this power and others that I have previously spoken against in your Lordships’ House could be counterproductive in the long-term fight against terrorism. That is why I support the amendment that we are considering today.
Baroness Hamwee
My Lords, the noble Lord, Lord Newton of Braintree, warned the Minister that those directly behind him were not unanimously supportive of the Government’s position. I have previously warned the Minister that those at a bit of an angle to him are, similarly, not wholly with him.
I wish I had used the example given by the noble Baroness, Lady Hayman, when I recently brought some young cousins into the Chamber and attempted to explain the separation of powers. That is exactly what this is about. Recently the Government have sometimes responded to judgments of the courts as though the courts sought to usurp policy-making powers. They are not the first Government to do so. That very response demonstrates the importance of the role of the courts, and the need to demonstrate our integrity as a country for the reasons that the noble Lord, Lord Condon, has just explained.
Lord Faulks
My Lords, I have enormous respect for the noble and learned Lord, Lord Lloyd of Berwick, for his experience and the consistency of his approach to this issue. I also acknowledge how delicate the situation is, how important the liberty of the individual is and that any powers of this nature ought to be hedged by a great many safeguards. However, a decision of this nature is one that falls to the Home Secretary to take. So far, the judges who have these powers have exercised the right to scrutinise thoroughly in a way that we cannot feel is short of what might be desired. I respectfully submit that it is a power that should belong to the Home Secretary, who makes these decisions, no doubt with great anxiety and the consciousness that any decision that she makes will be looked at very carefully.
A judge will have an opportunity to look at a particular case on an ad hoc basis. However, we should not underestimate the strategic role of the Home Secretary to see an act or potential act of terrorism, or a terrorist, in the wider scope. Notwithstanding all the powerful speeches that have been made, I respectfully submit that this is a question that belongs to the Home Secretary and her alone.
Lord Harris of Haringey
I am sure that it is helpful to the noble Lord, Lord Henley, to have the noble and learned Lord, Lord Lloyd, putting his arguments in advance. That may well be the argument on which the noble Lord, Lord Henley, will rely.
That brings me to my next point: can the Minister assure us that all of those extra surveillance arrangements will in fact be fully available, including the technical measures, by the end of this calendar year? Can he assure us that all of those arrangements are in place, and will be in place, and where there are technical measures, whether they have been adequately tested? The last thing any of us in this House would want to see is a situation in which new measures turned out not to be fully functioning when the need was greatest.
This is an amendment about prudence. I think it was relevant that the noble Lord, Lord Faulks, raised the point about the transition period. Again, I would be interested to hear the Minister’s response. It seems to me that the Minister has to satisfy the House today that not passing this amendment is a prudent, sensible and proportionate course of action. Those of us who are concerned about the security that will be available during the Olympics want to be satisfied that every necessary measure is available. Let us remember, this is not a mandatory obligation on the Secretary of State. Amendment 5 proposes that the Secretary of State “may impose restrictions”. It would only kick in under the very small number of instances where the Home Secretary was convinced, on the basis of information received, that this was something that was appropriate and proportionate to do. It would not be used on a blanket basis, and the number of instances in which relocation has been used under the existing control order regime is, as I understand it, extremely small.
I turn to Amendment 44A and the report on border controls to prevent terrorism. While I am not quite sure I understand the logic of the grouping which puts this with the other amendments, I none the less think it is extremely important. We have to recognise that, irrespective of the discussions there have been in the last week or so, there are issues about the security of our borders. This is nothing to do with whether the UK Border Agency has or has not been doing its job properly; has or has not exceeded the instructions of the Home Secretary; has or has not relaxed controls over and beyond that. It is about whether or not the controls could ever work. Therefore I think this report would be extremely valuable.
Could the Minister tell us what work is being done about people who arrive in this country by train through the Channel Tunnel, but whose destination may not have involved them having to go through passport control in either Paris or Brussels? To what extent are the Government considering what is going to happen at the point at which Lille, I think it is, is connected to a greater number of major train lines within the continent of Europe? What steps are in place to ensure that our borders are secure under those circumstances?
Can the Minister also satisfy us—and this has been the subject of debate in the last few days—what steps are in place to ensure that people who arrive in this country by coach are also adequately screened and whether the arrangements in place are able to cope with the volumes involved? Finally, for those who arrive by ferry, are arrangements in place to manage the numbers involved, and manage them properly?
Baroness Hamwee
My Lords, on the amendment on relocation the noble Lord, Lord Hunt, said that it does not detract from the essential point of this Bill. I think it does because the change to the measures which can be imposed is the essence of this Bill. Relocation is an extensive measure and can be particularly damaging—the noble Lord, Lord Newton, referred to this. I would add to his examples not just that of taking children out of their school and replanting them somewhere quite different but that of separating the individual who is the subject of the measure from his family, which has happened with relocation in a number of instances. I do not need to explain the impact of that.
Reference has been made to the evidence given to the Public Bill Committee in the Commons on behalf of the Metropolitan Police. I read that evidence as the sort of thing that any good copper would say in seeking to defend the police's position and ensure that as much money as possible was allocated to the activity, making quite understandable caveats about limits. Before the noble and learned Lord, Lord Lloyd of Berwick, mentioned it my reaction, too, to what happened earlier this year was that—as I think the Minister’s predecessor but one told the House on an earlier occasion—the extra surveillance measures were not then in force but would be, so the situation is changing.
I have always found a difficulty with pointing to the Olympic and Paralympic Games as a kind of watershed, not because I do not acknowledge that they could be a high-profile occasion for any terrorist to use but because we either are or are not equipped for dealing with terrorism. I cannot quite get my own head around whether, disregarding what the Americans may have said yesterday—they have always said that in relation to the Games—the Games are so very much more of a danger point. Indeed, is there not a danger for us in focusing on them as the critical time? It would be very damaging to the reputation of the Games and of this country if there was an attack earlier or later than that because we appeared to have relaxed our guard. I just find a difficulty in that.
Amendment 44A is exactly the opportunistic sort of amendment which I would entirely have expected the Opposition to table. Any Opposition would do so, but if the situation is as serious as they point out, then I, for one, do not want to wait a year. However, I am not sure whether this is in any way the right amendment. I would like to see an evaluation of the pilot that we have heard has been carried out, not to wait a year for that, but we are told that more dodgy people were picked up as a result of the pilot and it is important that we understand how that worked. This amendment, however, appears to go wider than the measures under this Bill because it does not use the term “measures”, which is defined in the Bill. I wonder whether the amendment is even within the scope of the Bill but leaving that technical thing aside, this is about immigration and controlees. The subjects of TPIMs are or will be British citizens, so although it raises important points I do not think those points are wholly relevant to this Bill. The subject is important but it is important to get it right, not to have it as a political football.
Baroness Hamwee
My Lords, I have Amendment 14 which is an amendment to the Minister’s Amendment 13. I am grateful for his confirmation that the wording that I have proposed is not necessary. I did not think that it was. I was relying on the word “and” at the end of the new paragraph (a), but I am glad to have that on the record.
Will it be open to an officer to direct reporting times? That presumably will be the case if the Secretary of State does not give a notice covering the matter. Will it always be the Secretary of State who gives that notice? The Minister will recall my concern that reporting should be required at a time which in general terms is reasonable and would particularly allow for the individual to carry out a course of study or to undertake work. As I probably said on the last occasion, one could not quite envisage applying for a job and saying to a prospective employer, “I am sorry, I am going to have to take two and half hours off three times a week in order to report in to a rather inconveniently located police station”. That was the reason for my amendment and if he can give any further assurances I will welcome them.
I welcome his amendment generally, because I think that it is helpful, and I also welcome Amendment 47. I did not have the technical considerations in my mind when I tabled this amendment at Committee stage. It was a much broader matter, but whatever the reason I am glad to see the paragraph going.
Can I ask the Minister a little more about Amendment 8? In the letter that he sent to your Lordships following the last stage giving the thinking behind all these amendments, which was very helpful, he said that in providing that an individual must stay within the premises,
“This is therefore a clarifying amendment. This is important for monitoring, enforcement and disruption purposes”.
Can I ask what is meant by “disruption” in this context? I would have expected that surveillance would be adequate to cover an individual being in the back garden. Presumably surveillance is going to be done largely through technology rather than through a pair of binoculars. Is there not electronic surveillance? Is it a matter of disrupting communications? If he is able to add a little flesh to that I would welcome it.
I am grateful to the Minister for his comments on my Amendment 14, which I will not seek to move when the time comes.
Lord Henley
My Lords, I hope that I can deal with my noble friend’s points. I am grateful to her for her comments. She asked whether it would be open to the police officer to direct reporting times. The point behind my amendments was that the Secretary of State would deal with such times. That would be in the order. Further directions may be given by the police in relation to someone coming to the police station but the times would be a matter for the Secretary of State.
As regards Amendment 8, we need to be able to disrupt any potential terrorist activities. For that reason one would not wish the individual to be able to leave the house and enter the garden at certain times as it might allow communication to take place on which it is not so easy to keep an eye. That was the reasoning behind government Amendment 8. I hope I have explained that clearly. If I have not, I will write to my noble friend in due course.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving Amendment 9, I wish to speak also to Amendments 10, 11, 12, 20, 40, 42, 43 and 44. All these amendments, which stand in my name and that of the noble Baroness, Lady Stern, follow on from debates held in Committee. None challenges what I think is fashionably called the architecture of the Bill. All seek to ensure that within the framework of the Bill, and without harming the effectiveness of measures, TPIMs have regard to their impact on the individual, who has not been charged, let alone found guilty of any offence—in other words, under our legal system, he is innocent—and on his family.
I have spoken previously about the need to recognise the individual person at the centre of any proposed measure. This is a matter of human responsibility. The restrictions imposed through control orders have been very considerable and in some cases very damaging. I acknowledge and welcome the Government’s efforts to reduce the restrictions and to write legislation in a different way, spelling out the limits of restrictions, but there is still potential for a lot of damage. I suspect that, to an extent, this may depend on how a particular measure is applied. I welcome the assurances that the Minister gave at the previous stage but wish to pursue a number of matters a little further.
I mentioned the individual but, of course—the noble Lord, Lord Newton of Braintree, mentioned this—it is also a question of the individual’s family. It is difficult to imagine the impact of such a measure on children, wives—I have heard of at least one wife who has attempted suicide more than once—and the community in the widest sense. This aspect is in my mind directed also at the effectiveness of TPIMs in avoiding taking measures that may tip the individual, his more extended family, friends, acquaintances and associates into the very sort of action which the Bill seeks to prevent. There are restrictions on association and communication and I worry that they could have that effect.
Lord Henley
My Lords, I am grateful to my noble friend and the noble Baroness, Lady Stern, for speaking to this fairly varied group of amendments. My noble friend said that she had grouped them together because the Whips were very keen on that process. I think that the Government are often keen on grouping things together because that can speed up debate, particularly when the amendments are essentially probing.
The noble Baroness is quite rightly seeking some reassurances and statements from the Government on what certain things mean. I shall work through the amendments in the order that they are tabled and shall try to satisfy my noble friend and the noble Baroness, Lady Stern, about what is meant and shall try to deal with their concerns.
I start with Amendment 9. My noble friend asked for clarification on what is meant by an “area of a specified description”. I confirm that allowing the Secretary of State—the Home Secretary—to impose restrictions in relation to both places and areas of a specified description is necessary to avoid unhelpful uncertainty about whether somewhere is most accurately defined as a place or an area. For example, it may be clear that airports qualify as places of a specified description, but it may be less clear that all the areas surrounding an airport, such as car parks, drop-off points or other areas connected to or adjacent to an airport, are captured. In conjunction with the rest of paragraph 3, the provision therefore gives the Secretary of State the required powers to restrict individuals entering places or areas where this is necessary for reasons of national security. Again, I can assure my noble friend that the scope of that area will not be what she described as a huge geographical area.
Turning to Amendment 10, I am happy to confirm that the power for a constable to give directions, as provided by the movement directions measure in Schedule 1, extends only to directions in relation to measures imposed under this Bill. This is because of the effect of Clause 30(1) and Clause 2. The result of these provisions is that the reference to “specified measures” in the movement directions measure is a reference to the terrorism prevention and investigation measures imposed under this Bill and specified in the TPIM notice.
In relation to Amendment 11, I can confirm that, for the purposes of the financial services measures in Schedule 1, “financial services” means any service of a financial nature. This includes banking and other financial services, but is not limited to them. Where paragraph 5 provides that the restriction on the possession of cash does not extend to cash held by a person providing financial services, it therefore includes financial services provided by members of other professions such as the noble Baroness herself, lawyers or estate agents. That would involve them holding money on behalf of an individual.
Amendment 12 would mean that the Secretary of State could not restrict the individual’s ability to associate or communicate with “specified descriptions of persons”. This provision is necessary because, in appropriate cases, it may be necessary, for example, to prevent the individual communicating, without prior permission, with persons living outside the United Kingdom. In such a case, it is not practicable or possible to specify all the named individuals to whom this applies. In the case of this particular example, I can reassure my noble friend that this would not prevent the individual seeking permission to speak to particular individuals, such as family members, who are abroad. The effect of the provision would be that the individual would need to provide further details about individuals with whom he wished to communicate in order to allow the Secretary of State to make an informed decision about whether to permit the communication.
In relation to Amendment 20—an amendment to Condition D in Clause 3—I can confirm that, as currently drafted, the legislation will require the Secretary of State to consider issues of proportionality as part of the consideration of the necessity of individual measures to be imposed under a TPIM notice. I can therefore assure my noble friend that the additional words that she suggests are not necessary in order to achieve the desired effect.
I turn now to Amendment 40. The noble Baroness’s amendment would add two new subsections to Clause 11. That clause currently simply requires the Secretary of State to keep under review whether Condition C—the necessity for measures—and Condition D—the necessity for specific measures—continue to be met. Amendment 40 would put on a statutory footing the requirement for a review group of officials to consider cases on a quarterly basis and to report to the Secretary of State. This review function is undertaken in the control order context by the Control Order Review Group. I can confirm that a TPIM review group will be established for the new regime to perform this function on a quarterly basis.
I turn finally to Amendments 42, 43 and 44. They build on proposals that my noble friend put forward in Committee. When debating my noble friend’s previous set of amendments in this area, I made the point that the measures that can be imposed under TPIM notices are intentionally more limited in nature than those that can be imposed under control orders, with lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment no longer allowed. I also made clear that the Bill as drafted—together with the relevant control order case law and the duty of the Secretary of State to act compatibly with convention rights—already ensures that the Secretary of State will give careful consideration to the impact of the measures on individuals and their families, including the impact on their mental health, before imposing the TPIM notice and while it remains in force. There will be, as of course it is right that there should be, careful and ongoing consideration of the impact of the measures on the individuals subject to them and on their families, including any impact on their mental health. This will be thoroughly considered as part of the regular reviews that will take place under Clause 11.
There is an extensive framework of judicial oversight and full appeal rights in relation to the TPIM notice, the measures specified in it and their impact. The individual will have the opportunity to make their own representations on these matters, including submitting assessments prepared by any person they wish. If a measure is considered to have a disproportionate impact, it will be revoked by the Secretary of State, and if it is determined by the courts to have such an impact, the courts will be able to quash it or direct its revocation or variation. We should also remind ourselves that the overriding purpose of the Bill is to protect the public from a serious and sustained risk of terrorism. It is therefore right that the Government should weigh their responsibility to protect the public heavily when considering the proportionality of their decisions.
The Home Secretary can be faced with difficult decisions when considering what restrictions are necessary and where to strike the balance of proportionality between the rights of the individual and the rights of the wider public to be protected from that person. The High Court has specifically accepted that an individual’s mental health does not automatically trump the national security case against him and the right of the public to be protected from the risk of terrorism. This serves to underline the difficult balancing act that will have to be conducted by the Home Secretary in each and every case.
The Home Secretary’s decisions are necessarily informed by sensitive information about individuals’ involvement in terrorism-related activity and the threat they pose to the public. It is this information that tips the other side of the scales and against which the impact of the measures must be weighed in order to arrive at a reasonable and balanced decision that accords sufficient weight to the need to protect the public. This information would not be available to the commission proposed by these amendments, but it will be fully taken into account by the courts and the Home Secretary when reviewing the ongoing necessity and the impact of the measures.
It therefore seems that the amendments put forward by my noble friend do not provide exactly the right balance. The approach I have outlined of careful ongoing review and rigorous judicial oversight strikes the right balance between protection of the rights of the individual and protection of the public from a risk of terrorism. It will ensure that the measures imposed are both necessary and proportionate. I hope the explanations of the earlier amendments and reassurances on the last three will be sufficient for my noble friend and the noble Baroness, Lady Stern. I hope my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before the Minister sits down, can he say whether the Government propose to publish the terms of reference of the TPIM review group? He may not be able to answer that.
Baroness Hamwee
My Lords, I certainly do not intend to press any of these amendments and I am grateful to the Minister for his explanations. I will comment on three of them. I am interested that a solicitor holding his client’s money might be providing financial services but am happy to accept that interpretation. On the first of the amendments, I take the Minister’s point about needing to use the correct terms, but I hope that every measure will be absolutely clear about the area as well as the place which is included—not, for instance, an “area around” or the “environs of” Heathrow Airport. If necessary, it would be proper for a map to be produced so that the individual as well as everybody else can be absolutely certain about what area is designated for this purpose. On the proposal for an independent commission, I am not seeking to challenge the architecture of the Bill and I am well aware of the court’s ruling that national security is not to be trumped. However, I hope that the Government and the new review group will take into account the points I have made, and the noble Baroness, Lady Stern, has made so powerfully, about, among other things, the need for an independent take on what is going on and to involve in the assessments people of experience and, where appropriate, non-members of the review group with that relevant experience. Having said that, and having thanked the Minister, I beg leave to withdraw Amendment 9.
Lord Newton of Braintree
My Lords, having stuck my neck out first one way and then the other in the earlier part of our proceedings, I had decided to keep my head down on this one. I want to say to my noble and learned friend, given the views I expressed in the House earlier in the day, that he has made me feel better. It may be respectable to keep my head down, so I shall continue to keep it down.
Baroness Hamwee
My Lords, that was a very obvious keeping-down of the head, done in a rather energetic fashion.
I would like to raise a point which I raised—obviously rather ineffectively—at the last stage, and that is to ask why the Government make a different provision for the generality of the Bill than for the temporary power provided in Clause 26? Under that power, the Secretary of State can impose enhanced measures on individuals whom she,
“is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity”.
It does not seem to me that the answer to that question can be that the situation is different. The urgency of the situation—with Parliament not sitting and, as I understand it, a heightened state of security—relates to the ability of the Secretary of State to make an order. However, the balance of probabilities relates to the individual, not to the overall situation.
I am glad to see the noble and learned Lord, Lord Lloyd, nodding. I too feel better now, as it is obviously not a completely stupid question. I do not see where the distinction comes, as we would still be considering individuals. It may be that the noble and learned Lord, Lord Mackay, has answered the question for the Minister, I do not know.
Lord Faulks
My Lords, consistency has become something and since I opposed this amendment on the last occasion I intend to be consistent in opposing it on this occasion.
Of course, the arguments are extremely beguiling in favour of an annual review. Any provision which threatens the liberty of the subject demands anxious consideration at every level. But there is a difference between what happened in 2005 and what we are confronted with today. I am sure that those who brought in those provisions—those exceptional and extraordinary measures—hoped that they would not be necessary for more than a short period. Unfortunately, that has not proved to be the case. This Bill is the result of a careful and thorough review of counterterrorism and of mature reflection by a number of people that, sadly, powers of this nature need to remain. There have been important modifications to these powers, including the higher threshold for the Secretary of State before deciding that there should be such provisions and the removal of the relocation measures. There has been a degree of sensitivity over how potentially extreme the provisions are, but the legislation has been the result of a mature consideration and has been scrutinised in a thoroughly orthodox way through both Houses of Parliament. It has not been the result of an accelerated procedure.
I respectfully suggest, although entirely appreciating the arguments that such provisions need regular review, this has had a thoroughgoing review. It can be reviewed again after the end of this Parliament, and I respectfully ask the House to consider rejecting the amendment.
Baroness Hamwee
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, expressed a certain weariness when he spoke on this issue in Committee. I do not think that he used the words “ritualistic” or “formulaic” but that may have been what he had in mind when he referred to the way some of the control order debates seemed to be going. I share that concern, but it leads me to say that we should make sure that renewal of this provision is not ritualistic or formulaic. We should take care to avoid that. However, it is not an argument for saying that we should not undertake that renewal.
We will, I am sure, be told by the Minister that we can debate the issue at any time that any of us succeeds in putting down a debate, and that the Government could repeal TPIMs at any time. Neither of those claims is an answer to the points that have been made. I urge the Government, if they lose the Division that is about to come, to turn it into a virtue and explain annually why it is that any renewal is required. The term “trust” was used quite a lot at an earlier stage in this Bill. Trust does need to be renewed, as well as everything else, to take both your Lordships’ and the country with them. The Government should regard this as an opportunity, not something that should be pictured in any way as a defeat.
Lord Rosser
My Lords, I will be brief. Our own Joint Committee on Human Rights said that the TPIMs remain,
“an extraordinary departure from ordinary principles of criminal due process”.
It went on to recommend that the Bill should also,
“require annual renewal, and so ensure there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.
Your Lordships’ Constitution Committee, as the noble Lord, Lord Pannick, said, also questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. Whatever one’s views on the need for TPIMs, these are considerable and exceptional measures, and it is surely right and appropriate that Parliament should—as happens currently with control orders—continue to have the opportunity and the duty to decide each year whether the situation remains such that the measures in this Bill and the associated powers should continue in being or instead be allowed to expire.
The fact that debates on the Bill are taking place now does not affect the necessity and appropriateness of proper consideration each year by Parliament of whether the circumstances remain such that these powers, and the way in which they are used and operated, are still needed for a further period of time. It remains to be seen whether the Minister’s position has changed on this issue, but if the noble Lord, Lord Pannick, decides in the light of the Minister’s reply to test the opinion of the House, we should support his amendment.
Protection of Freedoms Bill
Baroness Hamwee Excerpts(12 years, 8 months ago)
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Baroness Hamwee
My Lords, the Minister’s careful exposition of the Bill has been most helpful. I welcome the Bill with enthusiasm—such enthusiasm that I look forward to successor Bills taking civil liberties even further forward. It is a pleasure to be repealing legislation, particularly restrictive legislation, even if it takes 200 pages to do so. I do not regard this as a standard criminal justice Bill of the sort that we have become used to in recent years. I depart from the noble Baroness, Lady Royall, on that, but no doubt we will discuss it. However, I would also say that repeal should be a matter for Parliament, not for Ministers.
In our complex society technology seems to be matched by the technicalities of legislation, but the underlying concepts are simple: fundamental human freedoms, historic civil liberties and a state which has become authoritarian—certainly too authoritarian. We have all become accustomed to the demand, “Your ID, please”; we are too used to having to prove who we are. I heard—I think it was on the radio a few days ago—of an 80 year-old who was refused a purchase in an off-licence because she could not prove that she was not a teenager.
The worst thing is not knowing what is known about you. This is about the relationship between the consumer and Tesco—which is almost nil in my case, but one could say any other retailer—or between an IT user and a search engine operator, or, of course, between the citizen and the state. The obtaining and retention of information changes the relationship between citizens and the state.
I am not applying this comparison wholesale or in its entirety; however, thinking about today’s debate, one characteristic of fascist regimes seems to have been an obsessive collection and retention of information. There was certainly one regime of which that was characteristic, anyway; I am not sure whether the Italians were too chaotic to have been able to achieve it.
We talk a lot about policing by consent, and I have been wondering what that means in the year 2011. We should also ask ourselves what is the extent of consent of the citizen to observation, surveillance, the keeping of records and the sharing and use of information. That is not easy because what I may think should be applied to you and to everyone generally—that means everyone else—is not the same as what I think should be applied to me. Ask anyone who has been involved in local government: we all know of the demands for blanket CCTV coverage in order to catch the owners of dogs that foul the streets.
The existence of more than 4 million surveillance cameras makes me wonder whether their very proliferation reduces their deterrent value because they are so commonplace. They are not uniformly applied. There are three times as many automatic number-plate recognition cameras in two predominantly Muslim suburbs of Birmingham as there are in the city centre.
We have more mobile phones than we have people. We rely on them. We have a very high expectation of technology. I have a friend who, in her worst moments of tussling with her computer, calls it “the devil’s work”.
I remember the shock when people realised what information about their movements in London was stored on the Oyster card—so-called, we were told at the time of its introduction, because of the pearl inside the oyster. It is not just a single pearl; it is a whole jewellery box, if that is your view of it.
Our private lives are trespassed upon without our realising it. It is important, and I wish that I had thought of this, to draw the distinction between the right to privacy and respect for privacy. We should remember, too, that there are social pressures to share information. Your own inclusion of information on a social networking site can make you quite vulnerable.
Guidelines and codes of practice can be only as good as their operators. We saw what happened with Section 44 stops and searches. No doubt we will use the words “balance” and “proportionality” a great deal in our debates. We will range from the administrative convenience of using biometric information about children in schools and, I would say, the inevitable pressure on parents to consent to their use, to how appropriately—another good word, but sometimes a weasel word—to protect the rights of landowners from those who see a space and park on it.
At this stage of the Bill I am trying to look at broad principles, not least because a speech on the detail would take me far too long. Another principle is the law of unintended consequences, and the noble Baroness, Lady Royall, has referred to the impact of the extension of freedom of information to university research. I mention it specifically because my noble friend Lady Brinton, who cannot be here today, had wanted to do so. The problem is that even if a subject is still being investigated, is not yet patented, published or peer-reviewed or is part of a commercial and confidential contract with a partner outside the institution, it will still be caught. The Scots, under the guidance of my noble and learned friend Lord Wallace of Tankerness, when he was part of the Scottish Government—ahead of the rest of us, as so often—got this sorted, and so should we.
So we are looking at balance, proportionality and a good dollop of common sense, but the safeguards must not be illusory. I welcome the involvement of the judiciary in many of the matters covered by the Bill. We may have debates about what is appropriate as an executive decision and what should be a judicial decision, but we may need to explore the criteria for decisions that we require our magistrates and our more senior judges to take. I am not talking just about the exercise of powers of entry but, for instance, about the extension of the retention of DNA. What will be the basis for the judicial decision? For instance, what would be the standard of proof for something that was not actually a trial?
I have referred to safeguards and codes of practice. If there is more than a single regime, as there is with CCTV, we will need a lot of clarity and co-ordination between the regimes.
I do not know what the collective noun is for commissioners but we certainly need clarity and joining up about the respective responsibilities of existing and proposed commissioners, looking at it not least from the point of view of the public and trying to avoid confusion in the public mind. Let us also be sure that the independence of commissioners is real, not rhetorical.
I will try to restrain myself from seeking to add to the Bill, not least because I see this as the start of a process of a strand of legislation, but I will indulge myself by mentioning just one issue on which I have heard the current Information Commissioner talk: the need for a more effective response to blagging—that is, the unlawful accessing of personal information by trickery. If a private investigator blags information he can treat it as a business expense, so, far from there being a deterrent penalty, the taxpayer is actually subsidising the activity.
The Bill will be referred to as a Christmas tree Bill and it remains to be seen what baubles will be hung on it. I suspect that the Minister will be very cautious about getting out a piece of mistletoe and—I am searching for a verb—connecting with anyone.
The line of argument with which we are all familiar is, “If you’ve nothing to hide, you’ve nothing to fear”. I have nothing to hide—at any rate, nothing more than the usual embarrassments that we all have—but I fear the invasion of your Lordships’ privacy. This is about the sort of society that we want and how far, if at all, we should condition our rights. I welcome the Bill.