Chilcot Committee: Intercept Evidence

Debate between Baroness Hamwee and Lord Henley

Tuesday 24th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I do not doubt the difficulty of the subject, but when one looks to see what has been published over the past few years, there is nothing that is recent. Can the Minister give the House any reassurance that progress is being made, perhaps by publishing a further interim report?

[Lord Henley]

My Lords, it is for the committee of independent privy counsellors, the Chilcot committee, to consider what it can publish. I will certainly look to see whether there is anything that HMG can say, but I am not sure that there is at this stage. We want to get there; my noble friend knows we want to get there since she knows that it is part of the coalition agreement. However, I repeat that it is very difficult.

Olympic Games: Security

Debate between Baroness Hamwee and Lord Henley

Monday 16th July 2012 Lords Chamber

[Lord Henley]

My Lords, I am very grateful to the noble Lord for his words, particularly when he says that we should not at this stage be making negative comments about the Games. We want them to be a good set of Games—we want them to be secure, but not to be seen as “the security Games”. I am also grateful for his comments about what happened at earlier stages when we were not in government in terms of the original plans for the Games and how they were set up.

It is quite right that we are making use of contingency plans to bring in extra military service personnel to help out on some aspects of the Games, and that earlier on we brought in an extra 5,000 specialists from the Armed Forces to address security matters that only they could ever have dealt with, as we see from HMS “Ocean”, moored in the Thames, and other things that the private sector obviously cannot produce. We are talking here about providing some extra military personnel to deal with the problems created by the issues that G4S had. I am grateful to the noble Lord for his comments.

[Baroness Hamwee]

My Lords, can the Minister assure the House that adequate training will be available, given that so many individuals will be coming to the job so late, and that the right training will be given to people designated to particular jobs? There was an unfortunate item on the news last night when a young man who was said to have been put forward by G4S—I think it was more than he was set up than put forward—indicated his difficulties with language.

As a more general and principled question, will the G4S contract be published? Before I am told that it is commercial and in confidence, I raise the point that both parties to a contract can agree to vary that sort of clause and perhaps G4S can be persuaded that it would be in the public interest, in both senses of the word, that the contract should be published.

[Lord Henley]

My Lords, I can give my noble friend an assurance that everyone doing a job involving security will have adequate training and we shall make sure that people who do not have adequate training will not be accredited.

Regarding whether the G4S contract will be published, that might be a matter for both parties to consider after the event, so let us leave it until then. It might be that G4S wishes to publish it, or that some sort of post-mortem, as my noble friend is suggesting, might be appropriate after these Games. I do not think it is proper that we should create fears that are not necessarily there at this stage.

Justice and Security Bill [HL]

Debate between Baroness Hamwee and Lord Henley

Monday 9th July 2012 Lords Chamber

[Lord Henley]

I can be very brief. I can offer an assurance to my noble friend that “information” includes documents and other material whether held in documentary, electronic or other form. I hope that with that reassurance my noble friend will accept that the term “information” in the Bill includes all the matters that she lists.

[Baroness Hamwee]

I beg leave to withdraw the amendment.

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[Baroness Hamwee]

No, I said a note from the Government responding to points made by noble Lords at Second Reading.

[Lord Henley]

Perhaps I may assist the noble Lord. It was a note sent out by myself and my noble and learned friend Lord Wallace of Tankerness, which I hope went to all Peers who spoke at Second Reading. If the noble Lord has not received his, he should have done and I can only blame the post.

Justice and Security Bill [HL]

Debate between Baroness Hamwee and Lord Henley

Monday 9th July 2012 Lords Chamber

[Lord Henley]

My Lords, the same could apply to whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and therefore that Parliament should therefore have the duty to remove. If we accepted the noble Lord’s amendment, can he not see possible occasions where there was no possibility of removing a member of the ISC from office, no matter what they had done, unless they ceased to be a Member of their House of Parliament—this place or another place? I do not therefore accept the noble Lord’s amendment.

As regards his second amendment and the idea that the Speaker of either House has to be notified, I really do not see why notifying the Speaker as a means of resigning from the committee causes any problems at all. Both the Government and the committee are of the view that the chair should no longer be removed by, or required to resign by giving notice to, the Prime Minister. Again, the committee has previously been criticised for being a creature of the Executive. If the committee is to be a creature of, or belong to, Parliament, it seems far more appropriate that a person should have to resign by the means proposed rather than tendering their resignation to the Prime Minister.

I therefore hope that my noble friend will withdraw her amendment, and I am sure that the noble Lord will not want to move his amendments.

[Baroness Hamwee]

My Lords, I clearly did not explain my amendment adequately. My noble friend responded on one point, the continuity of the committee, but he has not dealt with my concern about delay in appointing members in a new Parliament. Can he help the Committee on that and give any assurances?

[Lord Henley]

My Lords, both Houses are normally reasonably speedy about these matters and we will obviously take the issue very seriously. I do not think that there has previously been a delay in appointing the nine members after appropriate discussions, and I cannot see that there would be any dangers of delay in the future, but whoever is in government will obviously have to bear in mind the importance of these matters and ensure that a new committee is created as quickly as possible.

[Baroness Hamwee]

My Lords, I have no idea about the appointment of the ISC but I discussed this matter with a Member of the Commons who has considerable experience of membership of Select Committees. It was from him that I heard that in one case there was a delay of almost six months in appointing the committee. It is that situation that I am seeking to avoid. I do not expect the Minister at this point to say anything other than what he has said, but the issue is serious in my head.

He said that legislation is not needed for the continuity of work of the committee or of the transfer of documents. I was not arguing that point at all. As I said, this is a probing amendment. I am not sure that I have probed quite far enough, but of course I beg leave to withdraw the amendment.

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[Lord Henley]

I am afraid that on this occasion I have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Secretary of any other department on the other. We suggest that the heads of the intelligence and security agencies fit in more appropriately with that later group rather than with the former group.

[Baroness Hamwee]

My Lords, I am not clear whether the Minister is saying that they fit in with that group or that they are exempt under the legislation, which he mentioned. Either way, process moves forward. It is not so very long ago that we did not have the Nolan principles, but they are completely accepted now. I, too, think that this may come, although it may not come in the Justice and Security Act 2012. However, we are in Committee, and I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, the Minister, who has been the subject of the many compliments flowing from the noble Lord, Lord Campbell-Savours, today, has given us quite a lot of material to think about. He has certainly given me some ideas about better drafting for my Amendment 18. Given the number of noble Lords who are here not to discuss this issue, I will do no more than end with a question. I am not sure that I expect the Minister to respond to it immediately. Under this paragraph, would a decision by the relevant Minister of the Crown—leaving aside the rank or position of that Minister—be judicially reviewable? Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an administrative decision that would fall within the ambit of judicial review? The Minister is going to dare to respond.

[Lord Henley]

My Lords, I am not going to dare to respond. I am saying that there are a lot of very noble and learned Lords in this House and a lot of Members who are not necessarily noble and learned but know a great deal of law. I do not know the answer to that. I had better write to the noble Baroness. I am sure she will have a response before Report.

[Baroness Hamwee]

My Lords, I am not a noble and learned Member either, which is perhaps why I can dare to ask the stupid questions. I beg leave to withdraw Amendment 18.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Henley

Wednesday 4th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.

There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.

Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I start by saying to my noble friend Lady Hamwee that I accept the seriousness of the points being made and I hope that I can deal with them in the course of this debate. I also noted what my noble kinsman Lord Avebury said about the right of appeal on race discrimination grounds, which I think is the subject of his next amendment. As it was my noble kinsman who wanted the amendments to be taken separately, I would prefer to deal with that issue when we come to Amendment 148B.

We have three amendments and a clause stand part debate in this group. My noble kinsman has tabled Amendment 148A and has given notice of his intention to oppose Clause 24, and the noble Baroness, Lady Smith, has tabled Amendments 148AA and 155EA.

As we are all aware, Clause 24 makes provision to remove the full right of appeal against refusal of visa applications to visit family members in the United Kingdom. The Government understand that a visit visa can help maintain family links: we granted some 370,000 family visit visas in 2011 and 1.26 million other visit visas in 2010-11. That is also why we issue, on application, longer validity multiple entry visit visas in some cases, which offer convenience to the family visitors who are granted them. The clause is not in any way about stopping people visiting their family members in the United Kingdom. The rules to qualify for entry are the same for both tourists and family visitors. Any family member who meets our immigration rules will be granted that visit visa.

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[Lord Henley]

A new application can be made immediately. That would be far quicker for the applicant than waiting for possibly eight months for the appeal to be dealt with. A new application can be dealt with within 15 days. That is a better deal for all involved, particularly if they are coming over for a family event such as a wedding. In eight months, the whole thing might be over: it would depend on how much advance notice they had for the wedding.

[Baroness Hamwee]

My Lords, as the Minister said, the fee for a new application is a little cheaper than that for an appeal. He quoted a figure for the savings that the measure would achieve. I have just had a look at the impact assessment—although I may not have the right piece of paper with me—which gives in narrative form an explanation of what is proposed, but I cannot find any figures in it for this particular clause.

The Minister may well not have the detail with him at the moment. If he does not, perhaps he could write to noble Lords to unpack that figure, which I think was £102 million, although I might have got that wrong. In any event, when it comes to the amount that the Government expect to save by this, I am having a little difficulty in putting all this together in a mathematical form.

[Lord Henley]

My Lords, impact assessments are always somewhat obscure documents, as my noble friend and others will well understand. I do not have the impact assessment in front of me at the moment but I think the figure I quoted was savings over 10 years of something like £103 million. My noble friend says £102 million, but what is £1 million between friends? The best I can do on this particular occasion is to offer to write to my noble friend with greater clarity about the impact assessment and what we reckon the savings will be. We think that there are very considerable savings to be made here and that the process is not working as it should or as it was originally intended because there are far many more appeals coming in. A new application would be a simpler way of processing these matters.

[Baroness Hamwee]

My Lords, it might help if I just say that it seems that an explanation for any savings may be with regard to the time that officers put into dealing with either an appeal or an application. That in itself raises issues. I make that point now in case the answer comes back simply in terms of figures, when there will need to be an explanation if we are all to understand. However, we all agree that the system is not working very well.

[Lord Henley]

My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Henley

Wednesday 20th June 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I did indeed raise questions about the contents of the framework document. Before we started our debate on Monday, when I was going through the amendments and got to this pair of amendments, I put a tick against them. I have deleted the tick for reasons which will not be very welcome to my noble friend. I am not convinced that an order would allow us to debate the framework document in the way that we would like to see. We need a lot of detail about it. As we all know, the drawback with an order is that we cannot amend it. Methods of operation, methods of exercising functions and administration, including—I have already questioned this—governance and finance, are very big issues.

I therefore hope that the Minister will, if not today, soon be able to tell us that his “due course”—not just his, I am not impugning him—arrives soon, so that we can understand a good deal more. Although I well understand the approach that the noble Baroness has taken, I am not entirely sure that it takes us as far as many of us would like to go.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I understand what the noble Baroness is getting at and how she wants to provide for the framework document to be subject to some parliamentary procedure —for it to be laid before Parliament. She went on almost to suggest that there was some conspiracy by the Government on this Bill and others in the lack of framework documents and how late they were coming. I think I made it quite clear back on Monday—it seems a long time ago now, having gone through another Bill, as the noble Baroness and I and the noble Lord, Lord Beecham, have done—that we very much hope to get at least an outline of the framework document in front of the House before we come back to the Bill at Report. It is important to point out that that is quite an early stage in the passage of this Bill as, unusually for important Home Office Bills, it is starting in this House. We cannot even claim to be the revising Chamber on this occasion because we are getting it first. We are dealing with it relatively slowly because of the delay we are having over certain items which we want to debate in early October, so that I can miss the Conservative Party conference. After that, it also goes on to another place so there will be considerable time for this House and another place to discuss these things in some detail.

Perhaps I may set out what the framework document is designed to do and what we think ought to be in it. The purpose of the document is to set out clearly and transparently how the Home Secretary and the director-general will work together—it is between those two—and the ways in which the NCA is to be administered. It is expected to include the agency’s corporate governance arrangements, the high-level arrangements for financial accounting and reporting, and how the agency will discharge its duty to publish information and promote transparency, including the classes of information which it will publish. It will obviously be a very important document, dealing with how the NCA is to operate, but it will also build on and be clearly subsidiary to the clear foundations set out in the Bill. As we have already debated, the Bill establishes a clear governance model for the NCA; namely, as a Crown body with an operationally independent director-general at its head, appointed by and accountable to the Home Secretary for delivery against the Home Secretary’s strategic priorities for the agency. The agency will be under the direction and control of the director-general and its functions and powers are, again, clearly set out in the Bill.

We have provided in Schedule 2 for the framework document to be laid before Parliament, the Scottish Parliament and the Northern Ireland Assembly, as the NCA will cover all parts of the United Kingdom. We believe that, given the nature of the document, this is the appropriate level of parliamentary procedure. The Delegated Powers and Regulatory Reform Committee made no comment on these provisions so, on that basis, we are on relatively firm ground in assuming that it was content with laying that procedure. Finally, as I think I suggested earlier, the Serious Organised Crime and Police Act 2005 did not even provide for a framework document, let alone one subject to an affirmative procedure, so this provision is an important advance on what has gone before in relation to the Serious Organised Crime Agency.

I appreciate that the noble Baroness would like it to be produced by statutory instrument and produced, as I think my noble friend put it, in due course. I came under a suggestion of pressure that I ought to define what “due course” meant. It is always difficult to define that. I am sure that the noble Baroness will probably remember promising things, when she was a Minister, “some time in the future”, “in due course” or whatever. We have all done this—I remember promising something “later in the spring” and being faintly embarrassed that that turned out to be July. I think most noble Lords understand what I am getting at. I am trying to promise her that we will get at least an outline of this by Report but, as I said at the beginning, I stress that that is an early stage in the process that this Bill is going through. It is starting in this House and still has to go through another place, so we have considerable time. Both Houses of Parliament will get a chance to look at that outline document. I hope therefore that the noble Baroness, who has an understanding of what “in due course” or “shortly” might mean, will feel able to withdraw her amendment.

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[Lord Henley]

Therefore, there would still be consultation but there would be no need for consent. However, as I said, that would imply that the Home Secretary could impose that on the director-general. We believe that the document is designed to set out the relationship between the Home Secretary and the director-general and, as I said on an earlier amendment, how the NCA will operate, including its governance, management and transparency arrangements. Therefore, the director-general will have a proper interest in making sure that it reflects his or her operational view of the NCA. Since the director-general will ultimately be accountable to the Home Secretary for delivering the NCA’s priorities, it is absolutely right that his consent should be gained to crucial decisions about how the agency is administered. It is right that we should stick to that process. I hope that the noble Baroness will agree that the framework document should be agreed between the two, with both consultation and consent.

I turn now to the trickier question—the googly that I referred to—that my noble friend asked as regards paragraph 4(2) of Schedule 2, which states:

“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to functions under sub-paragraph (1)”.

I think that that is relatively clear, although my noble friend obviously does not. All it does is remove the director-general’s duty to consent from those under paragraph 1(1)(a), which refers to,

“ways in which NCA functions are to be exercised (including arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA)”.

I could go on with the rest of that paragraph. I am hoping for advice to come through at this stage.

The important idea to get over is that the framework document and the annual plan are different and have to be dealt with in different ways. The framework document sets out the relationship between the Home Secretary and the director-general of the NCA. The annual plan allows the director-general to set out the activity planned for the year ahead and must take account of the arrangements set out in the framework document. Therefore, in his role in respect of agreeing to the framework document, he cannot have regard at that stage to the annual plan, which comes out later. I hope that that makes matters clearer to my noble friend. I see a faint degree of nodding from her as well as a faint smirk on her face. I hope that it is a smirk of agreement. I will sit down and hear whether my noble friend agrees with what I have said.

[Baroness Hamwee]

It was not a smirk but possibly mild hysteria. The Minister has confirmed that, to the extent that the two documents have any relationship to one another, the framework document is the primary document. He is nodding at that. I apologise because my point was not intended to be a googly. Anyone who knows me will know that the high point of my sporting career at school was questions such as, “Sally dear, can you see the ball?”. I really am not trying to be difficult. I am grateful to the Minister. I will read it again several times.

[Lord Henley]

From my noble friend’s confession, I think that her sporting career at school was possibly somewhat similar to mine in terms of its disastrous nature but I shall leave that as another matter. I am grateful for her acceptance. I think I got that right and that I have satisfied the point that she makes. Therefore, I await to see whether the noble Baroness, Lady Smith, wants to withdraw her amendment.

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[Baroness Hamwee]

I am not sure that it is insight, but the noble Lord is right to raise the point. I hope that he will at least feel that I can intervene on that basis, even if we are without insight. Schedule 7 states that this part of the Bill does not authorise disclosure in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. If there are other general statutory provisions that would override the situation that the noble Lord is talking about and would always apply, it needs to be made clear that someone may disclose, subject to other statutory provisions. I do not know whether what I have said takes the matter any further but I, for one, am now convinced that there is an issue.

[Lord Henley]

I am sure that there is no issue here and that the noble Lord, Lord Harris of Haringey, is not suggesting some conspiracy theory that these words mean something different from what I suggested they mean. That is why I said that one should look at what is there on the packet. However, I suspect that the best thing to do would be for me to write to the noble Lord and make sure that that is copied to his colleagues on the Front Bench and my noble friend Lady Hamwee; and if there is any problem, we can deal with that in due course. I am sure that there is no problem, and that the matter is straightforward and can be quickly resolved. Does the noble and learned Lord agree? Perhaps I can call him the noble and learned Lord, because he is so good at these drafting matters that I will elevate him on this occasion. If he is happy with that, I will leave it to the Committee to accept Clause 7.

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[Lord Henley]

My Lords, first, I apologise to my noble friend. I think I have the gist of what she was saying about Amendment 46B, but I have to confess that there was a brief conversation between me and my noble friend the Chief Whip, which meant that I might have missed some of the points she made. I hope that I still grasped what she was saying and that the response I am able to give her will be sufficient. If not, I will have to write to her.

On Amendment 46B, as an employer, the National Crime Agency can be held to account for any unlawful conduct by its employees during the course of their employment. That does not therefore need to be set out in the Bill. The NCA will be liable for its specials actions in the same way that it would be liable for the actions of any other NCA officer. Given that the NCA will not operate in isolation and will be tasking and co-ordinating wider law enforcement, having clear lines of accountability for the NCA and its partners is important.

Paragraph 2 of Schedule 4 provides important clarity as to exactly when the NCA will be held to account for the unlawful conduct of a person who is not employed by the agency but is carrying out NCA-related activities. Unless my noble friend wants to come back to me after I sit down, I hope that that deals with her particular points.

I will say a word about Amendment 46C because we want to take that away and have another look at it. National Crime Agency officers will benefit from protection against discrimination in the UK. It is intended that secondees to the NCA will benefit from the same protections. Having looked at that and having looked at my noble friend’s amendment, further consideration is required to ensure that particularly secondees, including police constables, are properly covered by the relevant legislation. I want to come back to my noble friend on that in due course. If there are any other queries, I will write to her in due course.

[Baroness Hamwee]

My Lords, I think that the penny has just dropped on paragraph 2, so I thank the Minister for that. On Amendment 46C, I am beginning to feel that I am beginning to do myself out of a job. This is the third time the Government have said that they will look at something again. I spoke on one for less than two minutes, on another for less than one minute, and on this one the Minister did not quite hear what I had to say.

[Lord Henley]

I think it was my noble friend Lord Attlee who recommended that brevity often yielded much greater results in this House. He commended it to my noble friend.

[Baroness Hamwee]

I had better not say any more other than I beg leave to withdraw the amendment.

European Court of Justice: Jurisdiction

Debate between Baroness Hamwee and Lord Henley

Wednesday 20th June 2012 Lords Chamber

[Lord Henley]

My Lords, there are arguments and ordinary citizens would accept some of them. However, ordinary citizens would also accept that some things are better looked after by our own Parliament back in the United Kingdom. That is why we will make the appropriate decision at the appropriate time, after we have listened to both Houses and voted on the matter.

[Baroness Hamwee]

My Lords, does the Minister agree that there is a great deal of and a great variety of cross-border crime? If he does, does he also agree that it is important that the UK puts itself into a position where we have most influence and the greatest opportunity for leadership?

[Lord Henley]

My Lords, again I totally agree with my noble friend on that matter. But it means that we have to make very difficult decisions at the time about what is precisely in the United Kingdom’s national interest. We will not make a decision on all 133 measures before that. There might be individual measures, as my noble friend will be aware, on which we might have to make a decision before then. But as a totality we will leave this to 2014.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Henley

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?

It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.

I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.

Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.

[Lord Henley]

My Lords, first, I take up a point that my noble friend Lady Hamwee took up when commenting on the remarks from the noble and learned Baroness, Lady Butler-Sloss, when she said that it was time to put Henry VIII to bed. She might find that that remark appears in The House magazine fairly soon as quotation of the week. But I leave it for her and the editors of that magazine. It was a very good remark and we all knew what she meant.

I want to make it very clear, as I hope that I did in my opening response to the noble Lord, Lord Rosser, that we do not want to address the issue as to whether counterterrorism should go in at this stage. My right honourable friend the Home Secretary has made that clear the whole way through. No decision has been made.

The noble and learned Baroness suggested two alternatives, because she was unhappy with the use of Henry VIII powers. She suggested that we could put the provision into the Bill with a delaying clause and enact later, but that would imply that we have already made up our minds on this. This is the point that I want to get over—that no decision has been made, and we do not want anyone to assume that a decision has been made. She then said that, if we did not want to do that, there was the route of primary legislation. On that point, I am grateful to my noble friend Lady Hamwee, who said that you could always find a slot for primary legislation. I can tell her that in my experience in government and opposition, that is simply not the case. The noble Baroness, Lady Smith, nods at me. We all know the difficulty of finding those slots. Very occasionally, if it is an emergency and you have agreement from all sides of the House, you can move very quickly. But finding legislative slots is very difficult. That is why in the end we thought that going down a route where we used the super-affirmative procedure provided the right level of scrutiny by both Houses. I appreciate that it still means that there is not the ability to amend in other ways, but with the super-affirmative procedure there is considerably greater examination of what is in front of both Houses than with an affirmative model or a negative resolution. That is probably why I rather cynically said at the beginning that we could have offered the negative resolution procedure and then in one House offered the affirmative as a concession and then moved on to the super-affirmative. As it was, we considered this very carefully and decided that the super-affirmative was appropriate. We think that we have probably got it right. I hope that we have and that the House will accept that.

I appreciate that the Constitution Committee disagrees with our view. I received its report this morning as I came in and have seen what it had to say at paragraph 7. However, I pray in aid the fact that another equally great committee of this House, the Delegated Powers and Regulatory Reform Committee, has looked at the measure and felt that it was not inappropriate. Therefore, there can be differences of view. I go back to the phrase that I have used on many occasions in relation to the Home Office—in the end one has to find the right balance. I hope that we have found the right balance on this and that the House will accept that Clause 2 is necessary so that we can consider this matter in due course. As I said, I leave it to the noble Lord, Lord Rosser, to decide how he wishes to proceed.

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[Lord Henley]

Without notice, I do not think that I can answer that question, but I will certainly look at it. The point that I was trying to make is that the noble Lord is trying to make something rather peculiar here: SOCA is completely exempt and is coming into the NCA, but other bodies that are not exempt are also coming in and they are then all one whole. In effect, he has created something that, when I mentioned the curate’s egg, I probably got exactly right. You cannot do it in a curate’s egg way because the whole egg will be bad once one part of it is bad. That is why we want to do it our way.

Obviously some bodies could be exempt, but on this occasion we think that it is right to create the new agency, as I am sure noble Lords opposite would have done if they were creating a new national crime agency to build on SOCA, just as they did with SOCA itself. It is for those reasons that we would like to preserve the exemption for SOCA for the new agency, and we think that what the noble Lord is suggesting is illogical or worse, and certainly not the right way to go about it. I hope that my noble friend will feel able to withdraw her amendment and that the noble Lord will consider carefully what I have said, particularly in the light of, as my noble friend and others might remember, the debates on the Bill that created SOCA back in 2005.

[Baroness Hamwee]

My Lords, the Minister started his reply by talking about balance. I have always thought that that was what the Freedom of Information Act exemplified within itself; it does not provide that everything can be subject to a FOI request but provides the exemptions.

I do not believe that the general reporting requirement to which the Minister has referred will cover the same sort of functions as FOI would do. I am not arguing against the exemptions, but there are different ways of dealing with issues of transparency and they produce different results. We have heard that the NCA depends on the confidence of its partners and that organised criminals could exploit FOI. Well, this would not be the first organisation that had to be very careful about what it disclosed. If there is an issue of that sort, maybe after this evening, and possibly in private, the Minister could give us some examples of where police forces, which are subject to FOI, have been caught out in the way that he suggests would be a danger if the NCA were subject to the provisions.

SOCA is exempt because of its particular functions. I am afraid that I remain unconvinced that the NCA—extending, as the noble Lord, Lord Rosser, has said clearly, to other functions—should be exempt in its totality. What I draw from this is the anxiety of the intelligence agencies not to let anyone else be in a position where they might take decisions that the intelligence agencies would not like. I shall withdraw the amendment today, but this issue justifies further examination. I beg leave to withdraw the amendment.

Crime and Courts Bill [HL]

Debate between Baroness Hamwee and Lord Henley

Monday 18th June 2012 Lords Chamber

[Lord Henley]

My Lords I am not sure that these booklets will come from the Home Office website. I will double check and make sure that I get an appropriate response to the noble Lord. All I am saying is that it is within the Home Office website that we have been having this problem. We want to get it right and are desperately keen to be open and fair. We want to get things across, and that is why I want to make sure that I can deal with all these matters and why I will write to the noble Lord’s noble friend, copying it to my noble friend and no doubt copying it also to the noble Lord, Lord Harris, and others who wish for a copy. We might discuss this later.

It might be useful if I set out—I hope not at excessive length—what we are trying to do with the National Crime Agency, where we are trying to get and why we think the Government’s arrangements are appropriate. Then we shall listen to the response from the noble Baroness. As she is aware, the National Crime Agency will be operationally focused, with a demanding mission to fight serious and organised crime and protect the public. We considered carefully how we would get the right governance arrangements for this agency to make sure that it maximises its effectiveness, accountability and, of course, minimises bureaucracy. That is something that the noble Lord, Lord Harris, did not stress, but might have done.

We have drawn up in the Bill the arrangements which we firmly believe achieve that right balance. Ever since I came to the Home Office, I have been talking about balance and it is important that there is the right balance between strategic oversight by the Home Secretary and effective operational leadership of the agency by the director-general. The director-general will lead and direct the agency and be directly accountable to my right honourable friend the Home Secretary and through her to Parliament, because she is answerable to Parliament. I must make it clear that this is entirely consistent with the tried and tested arrangements in place at many non-ministerial departments, of which there are a number. Let us, for example, take two that have a Home Office focus: law enforcement agencies such as the Serious Fraud Office—despite what the noble Baroness said—and the Crown Prosecution Service. As she will be aware, there are others outside what we could call the Home Office family. For example, there is the Food Standards Agency, which is chaired by the noble Lord, Lord Smith, and is answerable to the Department of Health or Defra—I forget which. Again, it is a non-ministerial department that responds to a department.

The noble Baroness proposes creating an NCA board, headed by a non-executive chairman, which would lead and direct the agency and to which the director-general would report. Instead of an operational crime-fighter, the Opposition want to put a non-executive chairman and board in charge of the NCA. Instead of the director-general being directly accountable to the Home Secretary, he would report through the board, which would inevitably be a slower and—I stress—more bureaucratic process. That is not the best governance model for a law enforcement agency that has to respond quickly and decisively to threats to protect the public. It would be like having your local police force, for example, run by a committee instead of by the chief constable.

In that example, chief constables must be held properly to account on behalf of the electorate, as must the director-general. However, people want to see effective accountability, not bureaucratic accountability. Creating more quangos, which is, in effect, what the noble Baroness suggests in her amendment, is hardly the way to protect the public from crime. Chief constables will be accountable to a single, directly elected police and crime commissioner in their force area. He will be visible and able to be held to account by local communities. In the same way, the director-general will be accountable to the Home Secretary, who can then be held to account by the taxpayer, noble Lords in this House and colleagues in another place. It is the Home Secretary who ultimately has responsibility for ensuring that the public are protected from crime and who will come before Parliament to account for the performance and impact of the NCA. Inserting a predominantly non-executive board and chair between the director-general and the Home Secretary will not increase accountability; it will just create more bureaucracy and more officeholders.

The amendments suggested here essentially replicate the arrangements that were put in place for the Serious Organised Crime Agency, which are more typical of non-departmental public bodies. However, SOCA is the only law enforcement agency with the sole responsibility of fighting crime that has this quango structure. It was always an anomaly. I do not know why the previous Government thought it was necessary, compared to, say, the Serious Fraud Office or the Crown Prosecution Service. Putting that non-executive chair and committee in charge of SOCA has inevitably led to more bureaucracy without adding to accountability. It has reduced the clarity over who is responsible for what.

In saying that, I make no criticism of the current SOCA chair and board members, who are distinguished professionals in their fields and who have done a very good job as a committee. However, I do not believe that it was the right structure for a law enforcement agency. The NCA is an agency that will have the power and responsibility to investigate serious and organised crime, and the officers of which will, like the police, be able to use coercive and intrusive powers. In its work to protect the public, there must be absolute clarity of accountability. What the noble Baroness proposes in her amendments would do away with that clarity.

Amendment 4 further specifies that the NCA board should include representatives of police and crime commissioners in England and Wales and of the police service. They are obviously key partners for the National Crime Agency and the director-general will want to work with them. However the Bill already clearly provides that these key policy partners will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency. Clause 3 requires the Home Secretary and the director-general to consult strategic partners before determining the strategic priorities for the NCA. Clause 4 also provides for these partners to be consulted on the agency’s annual plan.

The noble Lord, Lord Harris, put forward the idea of the importance of non-executive directors to be part of the internal governance of the NCA. He referred to the framework document, which will be issued in due course. In accordance with the principles of good governance set out by the Cabinet Office and the Treasury, in that document we will set out what those internal arrangements must be. They will include the role of potential non-execs, which we will consider carefully as regards the NCA but not in the manner suggested in the noble Baroness’s amendments. We will make an outline of that framework document available to Parliament in due course, as I think I made clear at Second Reading, to make sure that we can discuss these matters at later stages of the Bill.

Turning to Amendment 5, my noble friend Lady Hamwee is right to emphasise again the importance of good governance for the NCA, with which we agree. We will set that out in the framework document in due course. But the supervisory board proposed by my noble friend is a step too far. As I have said, we believe that the NCA should be led by the operational head, the director-general. Unlike the Opposition’s amendments which we have just discussed, this amendment sensibly leaves the director-general as the person responsible for “leadership and control” of the agency as set out in Clause 1.

However, creating a supervisory board headed by the Home Secretary muddies the waters over the director-general’s line of accountability. Therefore, I do not think that I can give it much support at this stage. I hope that those explanations are sufficient to deal with the concerns raised by noble Lords about the governance of the NCA. Obviously, we will discuss other more detailed matters on some later amendments. No doubt, we will come back to this issue at later stages of the Bill. I hope that I have largely dealt with most of the concerns put by noble Lords as regards this amendment and that the noble Baroness, Lady Smith, will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, before the noble Baroness tells the House what she proposes to do with her amendment, perhaps I may raise with the Minister the way in which references to the framework document are set out in Schedule 2. We are told that the document will deal with ways in which the NCA is to operate, including how it,

“is to be administered (including governance and finances)”.

No doubt the Minister and his officials will consider further the points that have been made today—I am by no means certain what should happen after this stage on this issue—and at least they will consider whether the term “administered” covers the issues of governance which noble Lords have raised. To me, governance is not something which is included in administration; it is an issue on its own. To include it within administration downgrades its importance.

--- Later in debate ---

[Lord Henley]

My Lords, I am grateful to my noble friend for putting forward these amendments and for making it quite clear that they are probing amendments. I hope that I can deal with some of her concerns.

I start with her first amendment, which simply suggests leaving out subsection (10). As I said, she put it forward as a probing amendment and I understand what my noble friend is seeking to ask. In setting out the expectation that agency investigations will lead to prosecutions, it is necessary to provide clarity on the role that the agency will take in relation to prosecutions—hence subsection (10), which provides that the agency does not have the function of prosecuting offences or, in Scotland, the function of instituting criminal proceedings. Rather, the agency will work closely with the prosecutors—that is, the CPS in England or the Lord Advocate in Scotland—to ensure that the right criminal justice outcome is achieved. I think it is right that those two agencies should do that, along with, in Northern Ireland, the Public Prosecution Service for Northern Ireland. Therefore, there is no inconsistency here. The NCA will not itself undertake prosecutions but will work with others to undertake activities to combat serious organised crime. Such activities must, quite rightly, include the prosecution of offences.

I turn to my noble friend’s Amendment 3, which would insert at the end of subsection (11)(d),

“in conjunction with other appropriate persons”.

I am very grateful to her for indicating that she also wanted to get over the fact that this is important in terms of the relations of the victims of crime. We have been clear that the reason for establishing the National Crime Agency is the need to respond to the changing nature of the threat posed by serious and organised crime—it has changed and will continue to change—and to ensure that our response keeps pace with the changing threat now and into the future.

As we are all well aware, where there is a crime, there is also a victim of crime. If we are committed to the agency tackling some of the most serious and pernicious forms of crime that we face, so too we must be committed to the agency playing an important role and working with other agencies and the voluntary sector to support the victims of crime. I suspect that my noble friend would like the reassurance that the agency will be able to work with any partners as it deems necessary to carry out its work. I can certainly give her the assurance that the agency’s primary relationships will be with other law enforcement partners but it will also be important for it to build wider partnerships with the private and voluntary sectors.

I hope that that assurance goes as far as my noble friend would like. I want to assure her that in due course the agency will take its responsibilities for all people, but particularly for victims, very seriously. With that, I hope that she will be sufficiently satisfied and will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am glad of that reassurance. I expected it but I am glad to have it. Indeed, there is something of a change in the nature of crime and the need to recognise what is required to assist victims of crime. We will no doubt come on to that in more detail with the next group of amendments.

I remain a little perplexed as to why it does not remain an option for the NCA to undertake prosecutions. Indeed, one might have thought that this was something that the framework document would address and give some explanation of, as it is about the way that the NCA is to operate. However, I have heard what the Minister has said and beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Henley]

I take the noble and learned Baroness’s point and I will certainly consider a specific reference when it comes to the framework documents. I was dealing with what was in the Bill, which I think is very important due to the reason that I set out—the changing nature of crime. For example, 10 or 15 years ago we had never heard of cybercrime. Now we have. Things change and move on and the danger of listing things in primary legislation in the manner that she suggests is that it may confine us unnecessarily and is not the best way of dealing with these matters.

I hope that those assurances are sufficient for my noble friend to feel able to withdraw his amendment. We might want to have further words and noble Lords and noble Baronesses might want to see more in due course, but for the moment I hope that he is satisfied. I await what he has to say with interest.

[Baroness Hamwee]

Following up the noble and learned Baroness’s point, surely one would expect, among the strategic priorities that the Secretary of State has to address and determine under Clause 3—she will have to report to Parliament—the issues of child and adult trafficking to which she referred and the different purposes of trafficking.

[Lord Henley]

My Lords, I look forward to my right honourable friends setting out their strategic priorities and to reports in due course. Whether I am the one who has to respond in this House when they appear is another matter. I am sure that the sort of pressure that my right honourable friend will be coming under will be such that she will certainly take on board what the noble and learned Baroness has had to say.

Asylum Seekers: Children

Debate between Baroness Hamwee and Lord Henley

Wednesday 23rd May 2012 Lords Chamber

[Lord Henley]

My Lords, there was an informal link of 70%, which is what I was referring to. Now if one looks at the different rates of income support, we can see a whole range of different rates, varying from, I am told, something from just below 60% up to 100%. It varies according to the rate of benefit. I am more than happy to write in greater detail if the noble Lord wishes, but it is rather too complicated to give such information at the Dispatch Box in the time that is available to me.

[Baroness Hamwee]

My Lords, it is estimated that 120,000 children are living in the UK without legal immigration status. That estimate was made by the University of Oxford which, in a recent report, also commented that,

“because of contradictory and frequently changing rules and regulations”,

both in immigration and in the allied areas that we have been discussing, access to public service has been hugely jeopardised. These are changes that have happened over the past 20 years or so. Can the Minister comment on how our policies can be better joined up, which is something that has challenged every Government?

[Lord Henley]

My Lords, the Question relates just to those seeking asylum. Obviously there are other means of dealing with those who have failed to get asylum status or for those covered in other ways. For example, Section 4 support is available to those who have failed to get asylum, should they be destitute. Other than that, we look to see whether they have families here who might also be able to support them. However, I think that my noble friend’s question is wide of the Question on the Order Paper.

Immigration: Detention of Children at Heathrow

Debate between Baroness Hamwee and Lord Henley

Wednesday 16th May 2012 Lords Chamber

[Lord Henley]

Is the noble Lord suggesting that they should be removed from their parents and sent somewhere else? That strikes me as even worse. This is complete nonsense. We think that the children should stay with their parents for that short time in the holding facility. If they cannot go there, they go to Tinsley House—a place that we have all accepted as being perfectly acceptable for children and their families to go to.

[Baroness Hamwee]

My Lords, I have a question. This Baroness—who has also been thought to have the first name Berenice—visited Cedars, a new facility near Gatwick. I was very impressed by the good work being done there by the border agency and Barnardo’s. Will the Government learn from that in dealing with families and children—some of them unaccompanied children—and deciding on the best way to respond to what everyone must acknowledge is a very difficult situation?

[Lord Henley]

My Lords, of course we will learn from what we have done at Cedars at Gatwick and we will do what we can. I am very grateful to my noble friend for mentioning that. Because of where these very short-term holding facilities are located within the airports, it is very difficult to think of design solutions. However, if anyone is going to be kept longer than that very short period of time, we obviously have to look at other facilities.

Abu Qatada

Debate between Baroness Hamwee and Lord Henley

Monday 30th April 2012 Lords Chamber

[Lord Henley]

My Lords, I do not accept what the noble Lord says at all. All I said was that I thought that the declaration represented a substantial package of reforms. There could be many more reforms to that court. The noble Lord knows perfectly well that it very often exceeds its functions and goes beyond what was ever intended in 1950 when we signed up to the original convention on human rights.

[Baroness Hamwee]

My Lords, the procedural issues are important but so, too, is the substantive issue. With the Government having reached what they regard as an acceptable memorandum of understanding with the Jordanian Government as to the evidence that will be used in a trial in Jordan, can the Minister tell the House how that process will be monitored to ensure compliance with the memorandum of understanding?

[Lord Henley]

My Lords, we will maintain very close contact with the Jordanian Government when we manage to extradite this man to Jordan and he faces his trial there. We will make sure that we keep fully cognisant of what goes on in the trial in that country.

Stephen Lawrence

Debate between Baroness Hamwee and Lord Henley

Tuesday 24th April 2012 Lords Chamber

[Lord Henley]

My Lords, I am grateful to the noble Lord for his support for the commissioner in these matters, and I am also grateful that he stressed that we have already had two reports—from Macpherson and the IPCC—both of which were unable to find any corruption in the original inquiry. However, obviously that does not mean that we should not look again at these matters and that is why in this Statement, made in response to a Question, we made it clear that initially the Met will hold an internal review. The noble Lord asked when it will conclude. Obviously I cannot give him an answer to that. If it is to be an internal review, it would not be appropriate for me, the Home Secretary or any other Home Office Minister to say how it should be done and when it should report or whether at this stage any assistance from HMIC might be appropriate, as the noble Lord suggested. As the Statement makes clear, my right honourable friend is treating these issues with the utmost seriousness and is currently considering her decision on these matters. It would be wrong for me to try to pre-empt that decision. That is why the Statement makes it clear that she offered to meet Doreen Lawrence to discuss these matters and that she will keep the House updated as and when appropriate.

The noble Lord then asked whether an independent inquiry was the only solution or whether we should have a continuation of Macpherson, and whether cost would influence us in these matters. I can give him an assurance that, within limits obviously—we do not want another Saville inquiry, which the noble Lord will remember cost something of the order of £100 million or £200 million—we will not let cash constrain or limit us too much.

The noble Lord went on to ask whether we would consider the terms of reference for any new inquiry. Again, until we decide whether we will have an inquiry, which is a decision for my right honourable friend, I cannot speculate on that on this occasion.

I have tried to answer every question that the noble Lord has put to me, but I have given him no answers whatever because this is not the moment or stage at which to do so. However, my right honourable friend is considering these matters and they are being taken very seriously indeed. She will consider them in due course.

[Baroness Hamwee]

My Lords, while one obviously regrets the need for such a Statement, I thank the Minister for giving it. Among one’s reactions, one can only imagine the frustrations of the many good officers who have been involved in this whole case, and, of course, the feelings of the Lawrence family. I also welcome the Home Secretary’s agreement to meet Mrs Lawrence. Does the Minister agree that the whole case confirms the wider importance of the involvement of, and information being given to, the family of victims as well as, when it is not a murder case, to the victims themselves? We have moved a long way, though there is further to go, from the days when the victim was little more than a witness. The role of the family is important in this day and age.

[Lord Henley]

My Lords, I totally agree with my noble friend about understanding the importance of victims and their needs, which is something that I hope we always manage to do. I also endorse what she said about the frustration of what she described as the vast majority of officers. I should like to make it clear to the House at this stage that there is no evidence from the two inquiries we have had. So I should like to refer to the frustration of all officers, on the basis of the basic presumption in English law that all are innocent until shown to be otherwise. However, I accept what she means about the frustration of those who feel that they have been tarnished by the actions of what we hope is not even a tiny minority—we hope that it does not exist at all.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Tuesday 24th April 2012 Lords Chamber

[Baroness Hamwee]

My Lords, what we have heard today emphasises the need for training for the police and maybe other agencies, and the need to be alert to behaviour that may escalate, having started as apparently comparatively innocent. I was relieved to hear my noble friend say that these amendments are unnecessary and grateful for his explanations. Reading them earlier today, it seemed to me that they were covered in both senses. The two sets of behaviour described, of which individual B was the subject, would fit within the new sections. As regards a third party, it is likely, depending on the degree of seriousness, for other criminal offences to be involved.

As I say, I am glad to know that the amendments are unnecessary and that such behaviour will be covered. If legislation is adequate, it is important that it is not expanded to cover explicitly this sort of example because matters that are not explicitly included might then be thought to be excluded. Therefore, if the legislation covers, perhaps in a fairly technical way, the behaviours that are of concern, it could be damaging in a wider sense to spell out those behaviours in the legislation.

[Lord Henley]

My Lords, I can respond relatively briefly and will deal, I hope, with most of the points. First, to protect the honour of the Home Office, I correct just one point made by my noble friend Lady Brinton. She talked about there being a department in the Home Office known as “Death and Violence”. I can assure her that that is not the case. The Home Office team that leads on this is called Interpersonal Violence, which I hope my noble friend will accept is a better name than the suggestion that she put forward.

I thank the noble Baroness, Lady Royall, for accepting that this matter has been driven by Parliament. It has been cross-party and I pay tribute to all those in this House and another place—the right honourable Elfyn Llwyd and others—who have led the work on this. Perhaps I may also say how important it is that we work with others; and that is why we will continue to talk to NAPO, Protection Against Stalking and ACPO about how we bring in the right training. As the noble Baroness will be aware, my right honourable friend the Prime Minister made it clear on International Women’s Day that training will be provided, and we will work with those bodies to develop that training. It is because we are providing it that we do not believe that the noble Baroness’s amendments are necessary or appropriate. It is because we believe that we have come to a considerable degree of consensus on this that now is the moment to move on and get this Bill on the statute book.

All that I want to do at this point is respond to one matter in the example that the noble Baroness gave regarding Mary and the problems she faced. The noble Baroness said that Mary did not change her daily routine and therefore would not be captured by new Section 4A. As the noble Baroness made clear, Mary on that occasion kept records of her stalker, she did not sleep and had to speak to the police. All those are examples of day-to-day activities being affected. Therefore, new Section 4A certainly could apply in that case, and that is why it is important that we provide the police with exactly the right training, and is why I am trying to give the commitment that we will work with the bodies that we have been talking about to make sure that the right training is evolved.

I should also take on the point made by my noble friend Lady Brinton about the need within the Home Office and Ministry of Justice to make sure we change the culture appropriately—that obviously also applies to the police—in terms of understanding the importance of these matters and ensuring that prosecutions are, when appropriate, pursued with vigour, if necessary at the higher level provided by new Section 4A, or by new Section 2A in much more minor cases. I dealt with the example given by the noble Baroness because I wanted to make it clear that new Section 4A could apply even in that case.

I therefore feel that the noble Baroness’s amendments are not necessary. I hope that she will not press them and that the Bill can move on to the statute book with due speed.

Immigration: Eurostar

Debate between Baroness Hamwee and Lord Henley

Monday 23rd April 2012 Lords Chamber

[Lord Henley]

My Lords, as the noble Lord knows, the ideal would be to process the passports at Brussels, which we try to do for seven of the 10 or 11 trains a day that go from there, stopping at Lille, that do not allow people to buy casual tickets. The noble Lord knows of the so-called Lille loophole, which we want to plug. As he has said, one solution would be to have staff on the train. We believe that that would be unnecessarily expensive and would not be cost-effective. We are talking about only three trains a day being affected by the Lille loophole. We think that we can continue to negotiate with the Brussels authorities to get them to allow us to do all the checks on all the trains, including the three on which casual tickets are allowed to be bought, at Brussels as would be appropriate.

[Baroness Hamwee]

My Lords, has the Minister been able to visit British Transport Police operations at St Pancras to look at what happens in relation to child trafficking? In a recent debate, he indicated that he would like to do so. My noble friend Lady Doocey pointed out that a number of simple steps could be taken to protect unaccompanied children coming into this country, including checks on the identity of such children and on the people collecting them, and a dedicated space on the train. Has he been able to follow any of those up?

[Lord Henley]

My Lords, I have not yet been able to visit St Pancras but I certainly hope to do so. My noble friend’s question is going slightly wide of the Question on the Order Paper, but it is valuable in that it points to the need not only to maintain appropriate security to provide the proper checks and safeguards for those who potentially are being child trafficked but to be able to do that in as user-friendly a manner as possible so that the complaints to which the noble Lord, Lord Berkeley, referred do not happen as well.

Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2012

Debate between Baroness Hamwee and Lord Henley

Wednesday 21st March 2012 Grand Committee

[Baroness Hamwee]

My Lords, rather like the debate that we had on the drugs order yesterday, I think it is quite hard for lay people—certainly such as I am—to judge proposals such as this. We have to rely on the experts and are grateful that they are there to advise. My noble friend the Minister has referred to the balance that has been struck. I take the point about the need for there to be a balance, although I was interested to read in the notes attached to the impact assessment the list of criteria used by the Lightfoot review as to which biological agents should be included or excluded from the list. In particular, it was quite interesting that ease of production was one of them, since a substance, a pathogen or toxin was of a level of danger or not. I do not see that as affected by the ease of production, but I suppose that the whole area of risk is quite tricky.

Like the noble Lord, Lord Hunt, I looked at the paragraph on consultation and cannot believe that the health services were not consulted. The impact of any of these getting loose, as it were, is clearly relevant to them. Could the Minister say a word about their involvement in the process?

Apart from those questions, I support the order.

[Lord Henley]

On consultation and who was brought on to the expert panel, there was a government, academic and industry expert panel comprising representatives of the Health and Safety Executive, the Health Protection Agency, the Defence Science and Technology Laboratory, the Department for Environment, Food and Rural Affairs, the National Counter Terrorism Security Office, the Security Service and the Department of Health. I can give that assurance to both noble Lords. I imagine that it would also have included representatives from the devolved Departments of Health, as well as the National Institute for Biological Standards and Control, the Association of the British Pharmaceutical Industry, Imperial College, the Centre for the Protection of National Infrastructure and, last but not least, the Home Office. That expert panel considered which pathogens handled in UK facilities could have potential to cause very serious harm if used by terrorists. We then had two 12-week consultation exercises, and the consultation document was made publicly available. Communications were targeted at law enforcement and bio-laboratory communities by e-mailing invitations to respond to each force and laboratory through their professional association. We had relatively few responses to that consultation—only about 20—but that is to be expected in such a specialist area.

The noble Lord’s second point related to cuts in the budget. I repeat that it is very difficult in the Home Office and all other departments having to cope with reductions in expenditure. However, we all accept that we can still do the job and do it properly, and I can assure the noble Lord that I still believe that that is possible.

Lastly, the noble Lord raised the point about PCCs. It was a nice try, but they will not be able to inhibit or damage any of the work under the Anti-terrorism, Crime and Security Act. The obligations are set out clearly in Part 7, and the police have a duty to explore those obligations. I do not believe that that is a matter on which we will see interference from PCCs.

I hope that that deals with the questions from my noble friend and the noble Lord. I beg to move.

Immigration and Nationality (Fees) Regulations 2012

Debate between Baroness Hamwee and Lord Henley

Wednesday 21st March 2012 Grand Committee

[Baroness Hamwee]

I hope that I did not put it in quite the stark terms in which he reflected it back to me. I was concerned, rather than making any allegations, because there are no details yet of a scheme to which I can respond. Is it intended that, when there is more clarity following the work to which he has referred about the particular services that might usefully come within such a scheme, there will be a further round of consultation, discussion or conversation—call it what you will—before the scheme is finalised? What I have picked up is the feeling that there is a real lack of clarity and that it is difficult for employers to respond at present.

[Lord Henley]

My Lords, I apologise for that misunderstanding of the point being made by my noble friend. I cannot give her an absolute guarantee that there will be further consultation, but I will certainly make sure that she is provided with the appropriate clarity that she seeks. We would obviously want to make sure that employers have that clarity as well, because if they do not they will not be able to make use of the system.

I turn to my noble friend’s questions, of which I was grateful that she gave me notice. First, with regard to the tier 1 post-study work closure supplemental, as my noble friend accepts, the focus of the debate should be on fees, but we have to look at the matter in the wider policy context for immigration. The tier 1 post-study work route will close on 6 April; currently it provides graduates with unrestricted access to the labour market for two years. A UKBA survey revealed that 30 per cent of those with post-study work leave were in low-skilled employment or unemployed. In a time of high unemployment in the UK, it was right that we should close that route. From 6 April graduates who wish to remain in the UK and work will need to apply through tier 2 and the points-based system and need to be sponsored by a licensed tier 2 sponsor. The minimum salary threshold for tier 2 is £20,000 or the appropriate rate for the job as detailed in the tier 2 codes of practice, whichever is the highest.

My noble friend also asked about the advice from the Migration Advisory Committee and what we had or had not asked it. The committee was asked to advise on appropriate economic criteria for settlement and recommended a simple pay threshold as a good indicator of skill. The cooling-off period that we referred to, which my noble friend asked about, was not part of its remit, but that was covered in the Government’s consultation document on employment-related settlement, tier 5 and overseas domestic workers. We believe that it was right to include in the changes to Immigration Rules laid on 15 March, as part of the package of changes intended to break the link between work and settlement and to reposition tier 2 as a primarily temporary route, a 12-month cooling-off period for tier 2 migrants.

I think that I have dealt with most of the points. I wanted to get on to the general criticisms of my noble kinsman—that is, my noble friend Lord Avebury—about service standards and the question as to whether refunds would be paid. As I made clear earlier, we believe that the UK Border Agency is meeting most of its targets. I accept that there will be failings on occasions; that is always the nature of things. The UKBA monitors and publishes its own service standards and makes them available on the website. It is committed to improving the service that it provides; that is why I talked about the investment and why the fees are important. It will take steps to address issues that may prevent it from achieving its service standards.

My noble kinsman then finally asked whether refunds could be paid for bad decisions. He quoted a response from the last time he tried to get something on this from the previous Government, from the noble Lord, Lord West. I do not always agree with everything that came from opposition spokesmen when they were in government, or otherwise, but on this occasion I am in full agreement with the noble Lord, Lord West, and there has been no change in policy. I hope that that deals with most of the points.

Misuse of Drugs Act 1971 (Amendment) Order 2012

Debate between Baroness Hamwee and Lord Henley

Tuesday 20th March 2012 Grand Committee

[Baroness Hamwee]

My Lords, reading about these substances makes me grateful that I was young in the comparatively harmless 1960s.

The orders are difficult for the non-scientist, not just in pronunciation. Like the noble Lord, Lord Hunt, I am grateful to the advisory committee. I do not know whether Parliament has ever rejected one of these orders. The noble Lord referred to paragraph 8.1 in the Explanatory Memorandum. The point I took from that was the comment that these substances have not been identified as having any legitimate medical or chemical use beyond potential research use. If legitimate researchers wish to use them for research, is there a route for that to happen? In other words, can research still take place?

I have no doubt that we will consider further orders which, to those of us who are not scientists, will look much the same but which, to the scientists, will be about different substances. I doubt that it is ever possible to be fully upstream and ahead of the manufacturers, particularly in the Far East, but I, too, support the order.

[Lord Henley]

My Lords, I shall briefly deal with some of the questions raised and comments made by noble Lords. First, I apologise for not paying tribute to the work of the ACMD. I am very grateful to the noble Lord, Lord Hunt, for doing so. We are very grateful for all the work that the committee puts in. The 25 or so members are all giving a considerable amount of their time free. What they do is very useful and we are grateful for it.

On the question of consultation raised by the noble Lord, as he will understand, we have consulted widely. The ACMD was involved. The noble Lord then mentioned the MHRA, which he was responsible for setting up, and BIS. Obviously, we will discuss these matters with other partners as and where appropriate. I am grateful that he emphasised the importance of doing that.

The noble Lord also discussed how we get the message over to young people. I just mention the Government's own advisory service for young people through FRANK, which he will be aware of, the website that provides information to them about exactly what are the dangers of certain drugs. That is all done in a manner not to appeal to the noble Lord or me but to be understandable to our children and others. As he also knows, FRANK was updated last year to improve the service available.

My noble friend Lady Hamwee mentioned the fact that she was somewhat younger in the 1960s. We were all younger in the 1960s. What was that remark—“If you can remember the 1960s, you probably weren’t there”? I leave that and make no further comment; it is probably something that we do not want to discuss.

I understand what the noble Baroness said regarding what we ought to be doing about research, and I give her an assurance that we will be facilitating research as far as possible through the licensing regime. I hope that that deals with the points that have been made.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Hamwee and Lord Henley

Tuesday 20th March 2012 Lords Chamber

[Lord Henley]

My Lords, I cannot give the noble Lord that figure without notice. I have no idea. I imagine that it might be possible, at disproportionate cost, to find out the number. All I am saying is that if they want to be an itinerant trader of that sort, they need a licence from their local authority and that has to be approved by the police. There is a very strict control on that particular aspect.

The noble Lord, Lord Campbell-Savours, rightly pointed to another problem—displacement. Could some of this go to Scotland? We are well aware of this problem. As the French discovered when they introduced a similar system, there was a danger that things would cross the border into Belgium and Germany. I have discussed this with colleagues in Northern Ireland and Scotland, although Scotland is more important, as there is a land border. Our colleagues in Scotland are well aware of what we are doing and are in full consultation with us. They will try to make sure that whatever they do keeps in line with what we wish to do.

The noble Lord is, for honourable reasons, merely seeking delay—delay that I am sure the BMRA would think was a worthy object to achieve. However, we do not think that it is right. We think that it is right to get rid of cash as soon as possible from this industry and that that will make a difference.

The last point that I want to address is that made by my noble friend Lady Hamwee about timing. I am afraid that I cannot give any categorical assurances to her about when and how we will get that further legislation. However, I make it clear, as my honourable friends in another place have done, that this is the first part of the package. We want to continue taking forward a coherent package to deal with all the other matters in the future, but I cannot give her any guarantee about timing.

[Baroness Hamwee]

My Lords, I did not expect my noble friend to be able to help me with regard to future legislation. I am sorry that I did not make myself clear. I was asking about commencement of these provisions, which will shortly find their way into the Bill and the Bill will no doubt shortly make its way on to the statute book. I am concerned about the current provisions.

[Lord Henley]

My Lords, these provisions will come into effect soon after Royal Assent, but I will check up on that and allow my noble friend to have the precise answer in due course.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Monday 12th March 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I shall speak for a moment in the hope that my noble friend Lord Dholakia will get here. I know that he has raised this matter with the Government as well. It is welcome to have unusual procedures available to make sure that we get the final product right. Someone is telling me that my noble friend is not here. I merely wanted to record that he has raised the same matter. I am sure he will be grateful to the noble Lord, Lord Ponsonby, for raising it now.

[Lord Henley]

My Lords, I will respond briefly in light of the remarks of my noble friend. The noble Lord, Lord Ponsonby, gave me notice of this issue and raised the question of which judicial body is appropriate to hear applications, under Clause 3, to extend the retention of DNA for those charged with a serious offence but not convicted.

As the House will be aware, this procedure is modelled closely on the system that has been in place in Scotland since 2006. In Scotland, these applications are heard by sheriffs, who, as the noble Lord will be aware, are full-time judicial officeholders, rather than by justices of the peace. In adopting the protections of the Scottish model, we have merely sought to replicate the position in Scotland. I would like to take this opportunity to reassure the noble Lord and other noble Lords—I think that the noble Lord is a lay magistrate—that this is not intended in any way to diminish the valuable work which lay magistrates do every day in dealing with the vast majority of cases before magistrates’ courts across England and Wales. However, as we have discussed previously, we expect these applications to be comparatively rare and we judge that, as in Scotland, it makes sense to put them before a professional judge rather than the lay magistracy.

Police and Crime Panels

Debate between Baroness Hamwee and Lord Henley

Monday 12th March 2012 Lords Chamber

[Lord Henley]

My Lords, I am sure that politics will not come into this, but there will be some people who will stand under party colours. However, that does not mean they will necessarily bring politics into this matter. The noble Lord is going slightly wide of the Question, which is about the panels. The important point is to differentiate the job of the police and crime panels from that of the police and crime commissioner.

[Baroness Hamwee]

My Lords, even with a light touch, the panels will have to get to grips with a lot of paperwork and information, and undertake a lot of discussion in order to carry out their job of scrutiny properly. If the amount that is to be provided is insufficient, will members be expected to look to their own stretched local authorities for professional and technical back-up?

[Lord Henley]

My Lords, as I said in answer to the first supplementary question, we have increased by some 40 per cent the amount available to the panels in the light of discussions and thoughts we have had following the passage of the Bill. We believe that it will be sufficient. If individual local authorities wish to spend more, it will be for those authorities to make that decision themselves.

Licensing Act 2003 (Diamond Jubilee Licensing Hours) Order 2012

Debate between Baroness Hamwee and Lord Henley

Tuesday 14th February 2012 Grand Committee

[The Minister of State, Home Office (Lord Henley)]

My Lords, the order proposes the relaxation of licensing hours to celebrate the Queen’s Diamond Jubilee. If made, it will allow licensed premises to stay open from 11 pm on Friday 1 June to 1 am on Saturday 2 June and from 11 pm on Saturday 2 June to 1 am on Sunday 3 June to sell alcohol for consumption on the premises, to put on regulated entertainment and to sell hot food and drink in venues where alcohol is also sold for consumption on the premises. The Government do not believe that the order should apply to takeaway establishments which in most cases already have authorisation to stay open late.

Section 172 of the Licensing Act 2003 gives the Secretary of State the power to make an order relaxing opening hours for licensed premises to mark occasions of,

“exceptional international, national or local significance’.

The licensing hours order would override existing opening hours in licensed premises and can be used for a period of up to four days. The order would apply to all licensed premises in England and Wales. Scotland and Northern Ireland are covered by different legislation.

The Queen’s Diamond Jubilee celebrations will be centred around the national events taking place over the extended weekend in June and, as such, the Government believe that a small relaxation of licensing hours in England and Wales is appropriate. It is likely that many premises will wish to open later over the Diamond Jubilee weekend to take advantage of the celebrations and the long weekend.

A survey commissioned as part of the 2008 Culture, Media and Sport Select Committee inquiry into the Licensing Act 2003 showed that 56 per cent of all premises in the survey still closed at 11 pm. Licensed premises may currently use a temporary event notice to extend their opening hours for a limited period at a cost of £21. However, temporary event notices are subject to certain annual limits. At present, only 12 may be given for a single premises in any calendar year, and they may be refused by the licensing authority if the police object on crime and disorder grounds. A small relaxation of licensing hours will benefit premises that would otherwise have used a temporary event notice to open late and will allow people to celebrate Her Majesty’s Diamond Jubilee in pubs, clubs and other licensed venues, such as community halls and restaurants.

The Government’s consultation on the relaxation of licensing hours for the Diamond Jubilee ran for seven weeks from 12 October to 1 December. There were 211 responses from a variety of interest groups and trade associations. A summary of the consultation can be found on the Home Office website. Around 85 per cent were in favour of the order being applied in England and Wales. The majority—some 80 per cent—also said that there were no effects in the usual level of crime and anti-social behaviour in their local area over the weekend of the royal wedding as a result of a similar licensing order. The off trade was excluded from the proposal on the basis that anyone wishing to celebrate at home could buy alcohol in advance or at any time during normal opening hours.

It was estimated that this small extension of licensing hours will save businesses in England and Wales between £280,000 and £480,000. The order will have no permanent effect on licensing hours and will mean venues opening for just one or two hours later on either or both of the specified days. We anticipate that any additional policing costs will be very limited because the majority of licensed premises that will take advantage of the order would have opened late anyway using a temporary event notice. We would expect any small extra costs to be met from existing police budgets.

I hope that the Committee will agree with the Government that this minor extension of the licensing hours to celebrate Her Majesty's Diamond Jubilee is an appropriate use of the powers conferred on the Home Secretary by Section 172 of the Licensing Act. I beg to move.

[Baroness Hamwee]

My Lords, I support the order. To do otherwise would amount to something like bah humbug. However, I have a couple of questions for the Minister.

First, why did the consultation ask for comments on the basis that the relaxation would cover only two nights? As the Minister explained, the relaxation period could be up to four days. It struck me as a little nannyish not to include Sunday and Monday, as if the state were telling people that they had better be fit for work on Tuesday.

I also wondered whether there was any indication of costs to local authorities that might be anticipated. The Minister has told the Committee of the police's response, but local authorities may have concerns about policing in the widest sense.

Thirdly, I do not know whether it is proper to ask for news about Royal Assent for a Bill. Certainly, I would like to know about the commencement following Royal Assent to the Live Music Bill. I suppose it is still a Bill until it receives Royal Assent. It would allow for live music in the circumstances set out in the Bill. I am sure that we would not want to stop patriotic songs being sung during these hours. Can the Minister give me any news on that? I know that my noble friend Lord Clement-Jones who piloted the Bill in this House and my right honourable friend Don Foster would be just two of those who would be glad to hear news of its impending effect.

Abu Qatada

Debate between Baroness Hamwee and Lord Henley

Tuesday 7th February 2012 Lords Chamber

[Lord Henley]

Intercept evidence is a matter that we have debated in this House and in another place on a number of occasions. I have debated it from the opposite side of this House in a previous role as a justice spokesman, just as I have as a Minister on this side. It is a very difficult issue. The special committee of privy counsellors should continue to examine it and report to Ministers in due course. Being frank and honest with the noble Lord, I have changed my mind more than once on this issue. It is an issue on which it is very easy to flip-flop between the two sides. The advantages at times seem overwhelming, but one then discovers that the risks to one’s intelligence and the sourcing of evidence can be even greater. It is a difficult question and not one that I would want to answer in detail when repeating a Statement of this sort.

[Baroness Hamwee]

My Lords, the European Court of Human Rights has been reported as saying that our memorandum of understanding with Jordan is one of the best that it has ever seen. I do not know whether the Minister can comment on this, but if he can, can he tell the House whether it is capable of being extended to give the assurances that would be required? I hope that it is, because I speak as someone who—like the Minister, I am sure—is proud of a legal system that rejects evidence obtained by torture.

[Lord Henley]

My Lords, under no circumstances do we want to make use or encourage the use of evidence that has been obtained by torture. In that, I would agree with my noble friend. All I can say on the memorandum of understanding with the Jordanian Government is that we will continue to discuss this matter with the Jordanian authorities so that we can ensure that we can get the deportation of Qatada, but get it in such a manner that any trial he faces there will be compliant with Article 6, which is what we are seeking to do. We thought that that was what our courts—I think it was the House of Lords before the creation of the Supreme Court—had said was the case. For some reason known only to the European Court of Human Rights—but, then, one always has strange views about it—that court did not agree with us on this occasion.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Monday 6th February 2012 Lords Chamber

[Lord Henley]

My Lords, if the noble and learned Baroness asks me to do that, then of course I will. It is obviously very important to get these things right—I want to get them right. Again, it is always a question of getting the balance right. That is what we are trying to do this evening. As I said, I suspect that the noble Lord may want to come back to this at a later stage. We will see. In the mean time, I hope that he is prepared to withdraw his amendment.

[Baroness Hamwee]

My Lords, at the risk of straining my noble friend’s patience—he has been very patient—he offered to come back on points that have arisen today. It is obvious that we are going to continue this subject with the next group of amendments, which we will come to next week. It would be extremely helpful if the noble Lord responded, as he has offered to do, not just before Third Reading but before we return to this next week. He may not wish to give an undertaking to that effect but I leave him with that thought. As the debate has gone on, I have made more and more notes on his Amendment 50A, which will be the first amendment next Wednesday.

[Lord Henley]

My Lords, I do not know whether it will be next Wednesday when we come back to this. I remind the House again that we are on Report not in Committee, and I think I have been interrupted and intervened upon more than one would expect. I will try to write to my noble friend before the next day on Report on this Bill. Whether it will be next week, I do not know.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Tuesday 31st January 2012 Lords Chamber

[Lord Henley]

If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.

I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.

I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,

“any other case,”—

in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,

“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.

We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.

I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.

[Baroness Hamwee]

My Lords, I do not think that we will have an opportunity to come back to mine. Of course, I am glad that the Minister and I are focused on the same outcome—the destruction of the material. My concern is that the answer to the Parliamentary Questions and the letter from the Minister rely on the new Section 63D(2) of PACE. However, as I had hoped I had explained, I do not think that it applies. The new section starts “This section applies to” and then in paragraphs (a) and (b) sets out what it applies to. My concern is that material taken when the person is not arrested, as the Minister has made clear, and has not given consent would not fall within this and therefore the provision for destruction in new Section 63D(2) would not apply.

I am glad to hear what the Minister says about the code and I am of course not going to press the amendment today. But my concern was that, by relying on a section that in my view does not apply—I do not think that we have quite bottomed it out—there might be resistance to destruction, which the Minister has said that the code will make quite clear is required. Although not within the context of the Bill, perhaps this is something that he and I might have a further word on outside the Chamber because we are clearly aiming at exactly the same outcome. Having said that, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

The noble Baroness has referred to the figures that she gave us at the previous stage. She said that 23,000 criminals a year would no longer be on the database who could commit 6,000 further crimes. She has answered the point of my noble friend Lord Phillips and confirmed that these include minor offences. Rereading Hansard, I was not clear whether the 23,000 were those within years four to six, because some of the cases mentioned in the debate related to crimes where there had been more than a six-year period.

As noble Lords said on the previous occasion we discussed this matter, it is not entirely black and white. As we discussed in Committee, if one asked a random group of the public about this, most would want a longer period of retention. That is possibly correlated with those who watch entertaining but unrealistic television dramas; I know that I am affected by these things. We all know that if you asked the same group of people about capital punishment, you would probably get a very hard-line answer, which is why most of us try to avoid asking that question.

My noble friend Lord Phillips said that though we would all agree that a society with a full range of surveillance would be a different society, few of us would be able to articulate why that was so. I have to say that I am among the less articulate on this. I do not think anyone could say that what the Government have proposed is in any way a casual approach to retention or one which completely reverses the current approach. Indeed, it is a pity that what is proposed in the Bill is so hedged about with conditions that this is not so very different a piece of legislation. I agree that, of course, we should not be casual about crime and the prevention or detection of crime. Similarly, we should not be so cautious that we are casual about privacy, our culture and the intervention of the state in our privacy. The noble Baroness said in Committee that,

“there is a fine line between the preservation of … freedom and privacy”,—[Official Report, 29/11/11; col. 146.]

on the one hand and the delivery of justice and the protection of citizens on the other. I also acknowledge the fineness of that line but I think that I am on the other side of it from her.

[Lord Henley]

My Lords, as always, I am very grateful to my noble friend Lord Lester of Herne Hill for his assistance and advice in relation to what the Joint Committee on Human Rights feels about this issue. I am also grateful to my noble friend Lady Hamwee for what she had to say. Certainly, we will do what we can to provide better evidence of the use of DNA in convicting criminals as and when we can. However, I refer the noble Lords, Lord Campbell-Savours and Lord Hughes of Woodside, and possibly even the noble Lord, Lord Harris of Haringey, to the figures. These are some of the figures that we have; obviously, more will become available. Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember as we look at this amendment.

I also give an assurance to the noble Lord, Lord Hughes of Woodside, who was worried that material taken from crime scenes would be lost. That is not the case. Material taken from crime scenes will still be taken; we are talking about material that is taken from individuals, whether criminals or not. That is a very different matter. My noble friend Lady Hamwee addressed a point of disagreement about whose DNA you should keep and for how long. We know that the noble Lord, Lord Campbell-Savours, feels that there should be a national database containing everyone’s data. He would like to start with a voluntary database on which we can all put our DNA. We will discuss that when we reach his amendment. That might be hunky-dory and all that but it is not what we want, nor do we think that we should pursue a compulsory line in that regard.

I have explained what evidence we have. That is something we will look at but I also think we ought to look at other matters which influence this decision. The first thing to point out to the noble Baroness, Lady Royall, is that they would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model. She says that that model was agreed without any analysis whatever. I have given some figures and we will provide some more in due course but we will also look at the remarks of Mr Keith Vaz, chairman of the Home Affairs Select Committee, at Committee stage on this Bill in another place. We will also look at what the ECHR had to say with regard to the Marper case referred to by the noble Lord, Lord Dear. I was very grateful to him for his intervention, particularly as he stressed the important point of this being a question of balance. My noble friend Lady Hamwee also stressed that point.

I believe that the party opposite is persisting in its approach to keep the DNA and fingerprints of innocent people for many years, no matter how little evidence was ever uncovered, and to keep huge numbers of individuals’ DNA and fingerprints on the national databases just in case they go on to commit crime in the future. That is not something with which we can agree. The party opposite pays scant regard to the judgment of the European Court of Human Rights in the S and Marper case, which noted with approval the system which has been in place in Scotland for some years. I remind your Lordships that the Scottish system, seemingly endorsed by the European court and on which we have modelled the proposals in the Bill before us today, was put in place by the Police, Public Order and Criminal Justice (Scotland) Act 2006, which was presented to the Scottish Parliament by the then Labour Justice Minister, Cathy Jamieson. I do not think that the Labour Party is in power in Scotland at the moment.

Noble Lords opposite contend that our proposals are in some way a charter for dangerous criminals such as rapists which will allow dangerous individuals to roam the streets, committing serious offences with no way of tracking them down. The contention that every individual suspected of rape or any other serious offence will instantly come off the database as a result of these proposals is just not true. As we have discussed previously and at some length, those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. The police will do that and that is similar to what is happening in Scotland. Those arrested for a qualifying offence but not charged—oh! I was wondering whether the noble Lord wished to intervene but he is obviously addressing his Front Bench.

--- Later in debate ---

[Lord Henley]

My Lords, I shall speak also to the other amendments in my name in this group; that is, Amendments 19, 22, 25, 26, 27, 28 and 29. We will also consider in this group Amendments 20, 21 and 23, in the name of my noble friend Lady Hamwee, and Amendment 24 in the name of the noble Baroness, Lady Royall. I shall respond to those as I come to the end of my remarks, but, at this stage, I shall speak just to my own amendments.

We consider a child’s biometric information to be highly personal and sensitive and, as such, it should be protected. It is right that schools and colleges should be required to obtain the written consent of a child’s parents if they wish to take and process this information.

We listened carefully to the concerns raised in Committee about these provisions. In particular, my noble friend Lord Lucas and the noble Lord, Lord Rosser, argued that the requirement to obtain the written consent of both parents would place too great a bureaucratic burden on schools and could have the effect of dissuading schools and colleges from using biometric recognition systems.

The Government are persuaded that we should remove the “dual consent” requirement and instead provide for a system whereby all parents, and any other individual with parental responsibility for a child, must be informed in writing that the school or college intends to take and process the child’s biometric information and that they have a right to object. As long as no one objects in writing, the written consent of only one parent will be required. This change strikes the right balance between ensuring that the views of both parents continue to be taken into account, with their right to object preserved, and ensuring that the administrative burden on schools and colleges is not too great.

The Government’s amendments also make the consent requirements in the Bill more consistent with all other forms of consent that schools and colleges are required to obtain, therefore alleviating any additional bureaucratic burden. The main difference in this instance is the express provision to notify all parents and the stipulation that, if any parent objects, the processing of their child’s biometric information cannot take place. I beg to move.

[Baroness Hamwee]

My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.

Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.

The UN Committee on the Rights of the Child has made it clear that:

“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.

Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.

I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.

The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,

“it is they who should in the first instance be informed and consulted about the use of their personal data”.

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[Baroness Hamwee]

My Lords, I beg to move Amendment 34, which has been prepared by the Bar Council. Any noble Lord who looked at the Marshalled List would have been surprised that anyone without parliamentary counsel experience could have come up with this, and indeed it was a former parliamentary counsel who drafted it. I take this opportunity to thank the noble Lord, Lord Henley, for the meeting he had with representatives of the Bar Council a few days ago.

The amendment is underlaid by the common-law right of a client and his lawyer—or indeed a lawyer and his client; it works both ways—to communicate privately. I do not think I need to emphasise the importance of this, nor can I overemphasise it. It is a fundamental human right and a major building block of our administration of justice. If a client feels that his communication might be disclosed and used against him, he will edit what he tells his lawyer, and his lawyer will inevitably be handicapped by that.

There is a statutory protection against the use of legally privileged communications when a client is in custody, but in 2009 in the case of Re McE, this House, when it was still sitting as a court, held, although not unanimously—the noble and learned Lord, Lord Phillips of Worth Matravers, dissented—that Part II of RIPA permits the covert surveillance of meetings between defendants and lawyers. This ruling applies to other covert investigation techniques: the interception of communications, the acquisition of communications data and the use of covert human intelligence sources. There is therefore a problem where instructions are taken outside a police station, such as a group of people at an environmental protest, or indeed when one meets any group of people, or any individual, outside particular premises. The ruling also applies outside criminal law when an individual brings a civil action against the state, and to think that the state itself could be listening into and using what he tells a lawyer reminds us of regimes that are very far from the model of what we wish to be in this country.

Following McE, orders were made that altered the authorisation provisions and revisions were made to the codes of practice, but in the view of the Bar Council these provide insufficient safeguards. The codes of practice provide for the violation of legal professional privilege only in “exceptional and compelling circumstances”, but the test contains no special protection for privileged material. For directed surveillance, such circumstances are said to arise only in cases where there is a threat to national security or to “life or limb”. The phrase “threat to life or limb” is not clear; it could extend to quite minor offences where physical injury has arisen from a lack of reasonable care or a breach of a duty that gives rise to strict liability.

The real difficulty is that these changes do not address the fundamental point that covert investigatory powers should not be used to target privileged communications. The orders, in any event, do not apply to the interception of communications and the acquisition of communications data. This amendment would protect legal professional privilege except where it is abused for criminal purposes.

The noble Baroness said in Grand Committee that no one could regard themselves as being beyond the law or immune from investigation or prosecution. I do not challenge that. Indeed, I share that view. Therefore the inequity exception, as it is known in the trade, is included, which provides that privilege does not attach to information that is held or to communications that were made in the furtherance of a criminal purpose. The proposed new clause would simply bring RIPA into line with other legislation. When RIPA was introduced, the issue of privilege was not debated at all, and the courts have been left to construe statutes. This is not a case of the courts having any basis other than an assumption of the construction, “Parliament must have intended”. I do not think that Parliament addressed its mind to it.

I have two further points. First, the noble Baroness mentioned the requirement of codes of practice that cases of legally privileged communications which are intercepted or retained, or are the subject of interception, should be reported to the Interception of Communications Commissioner. I take that point but it is after the event and does not meet the basic concern.

Secondly, the noble and learned Lord, Lord Scott of Foscote, queried whether the way in which the provision was drafted would give a wide power to the Secretary of State to pre-empt how the courts might deal with a criminal purpose. He pointed to the words “or otherwise”. The matter is most likely to arise on an application for authorisation but it could arise later in an investigation where the fruits of a covert operation tend to include lawyer-client communication, which would not attract the iniquity exception.

The Bar Council and I believe that the addition of the words:

“For the purposes of this section”,

in two places would confine regulations which are proposed to provide for determinations only for the purposes of the relevant section of RIPA and not be as extensive as the noble and learned Lord feared. I am grateful to him for pointing out the need for a little tweaking.

This is an issue of really important principle, which I appreciate I am bringing to the House late in the evening. Perhaps the exit of a number of noble Lords indicates that we are not going to go on to what they were staying for. I have no doubt made myself a bit unpopular therefore by this but nevertheless it is an important point of privilege.

[Lord Henley]

My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that.

Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further.

We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance.

This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage.

Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack.

Violence against Women

Debate between Baroness Hamwee and Lord Henley

Thursday 19th January 2012 Lords Chamber

[Lord Henley]

My Lords, the noble Lord is taking the issue way beyond the Question on the Order Paper, which relates to the Council of Europe’s convention. Obviously we will consider those points, but those are matters for domestic law and not matters relating to compliance with this convention, which relates to combating violence against women.

[Baroness Hamwee]

My Lords, I welcome the consultation being across Whitehall, because many agencies are involved in the many issues. How are we to reconcile the localist approach of police and crime commissioners and candidates with an eye to election with the need to ensure that police budgets contain an adequate line for what is essentially not a very populist issue? In other words, how do we make it a populist issue?

[Lord Henley]

My Lords, again my noble friend is going way beyond the Question on the Order Paper in bringing in the subject of police commissioners. We are talking about whether we can comply with this Council of Europe convention—compliance that involves changing the law in a number of areas. That is what we are consulting on at the moment, but we are also looking at other issues, particularly extra-territorial jurisdiction.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Thursday 12th January 2012 Grand Committee

[Lord Henley]

My Lords, I am sure that my noble friend is right when she says that it is better always to ask the question rather than, as she put it, to take the risk. As I understand it, the amendment proposes to extend the scope of Section 6 of the Freedom of Information Act beyond the extension already proposed in the Bill. However, the amendment seeks to do so in a way that I think is at odds with the approach taken in the Act.

At present, Section 6 of the FOI Act brings within the scope of the Act only companies that are wholly owned by the Crown or any single public authority listed, with limited exceptions, in Schedule 1 to the Act. Companies that are wholly owned by more than one public authority, or by the Crown and one or more of those Schedule 1 public authorities, are not currently subject to the Freedom of Information Act. Clause 101 therefore amends Section 6 of the FOI Act to widen the definition of a “publicly-owned company”, with the effect of extending the Act to companies wholly owned by the wider public sector. This simply means that any combination of public authorities subject to the Act, with limited exceptions, or by one or more of those bodies and the Crown, will be brought within its scope.

I mentioned that there are limited exceptions to this change. In one such instance, where a company is owned in part or wholly by a body that is itself subject to the Freedom of Information Act in respect of only some—and not all—of the information that it holds, the company will not be covered. It is this exception that my noble friend proposes to remove, so that such companies are subject to the Act.

I appreciate the intentions behind my noble friend’s proposal. Although relatively few public authorities are subject to the FOI Act only in respect of some information, and the number of companies excluded through the current proposal is likely to be small, the case for adding such bodies may well often be strong. However, I do not consider blanket coverage for these companies in the way proposed to be the most appropriate solution. As their parent body does not exercise wholly public functions—hence their partial coverage by the Act—it follows that some of these companies will also perform functions that should not automatically be subject to the Act.

That is not to say that it will never be appropriate for such bodies to be subject to the Act. Indeed, that may well be the case where any company of this sort exercises, for example, functions of a public nature. However, in such cases other means exist, and are already being used by the Government, to extend the scope of the Freedom of Information Act. These include secondary legislation under Section 5 of the Act to include bodies performing functions of a public nature. It would be more desirable to consider adding companies of the type relevant to the amendment on an individual basis where strong reasons for including them exist. We think that, as it were, a piecemeal approach, rather than the blanket approach proposed by my noble friend, is the better way for doing that.

I hope that that explanation is of some use, but if it is not I hope that my noble friend can at least read what I have said and consider whether that is satisfactory from her point of view.

[Baroness Hamwee]

I thank the Minister for that response. I follow everything he says, except, perhaps, his conclusion because I was not seeking blanket coverage. My draft would deal with the coverage of particular information only. I will read what he said, and I wonder whether I may be able to discuss this with him or his officials in order to understand whether the Government have in mind examples of the piecemeal extension to which he referred. Having said that, I beg leave to withdraw the amendment.

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[Baroness Hamwee]

The opt-in to the directive is of far more than technical importance: the message that the opt-in sent was of great significance. I do not want to repeat much of what has already been said but, on the issue of a national rapporteur, I echo the noble Baroness and what the noble Lord, Lord McColl, has said previously about the importance of its independence. The Government have recently published a trafficking strategy and—because it is human nature—to expect them not to defend their own strategy and to see the issues in a more objective way is to demand more than is reasonable.

I also echo the request for an analysis of the matters that can be dealt with by secondary legislation—it is quite clear that the previous speakers have a much better grasp of the detail than I do—so that we can be assured that every point has been picked up, rather than an assumption that secondary legislation will do the job.

[Lord Henley]

My Lords, I hope that I can respond relatively briefly but I will have to write a number of letters to noble Lords.

On the issue of what further work we have to do through secondary legislation and other means, I shall write in detail to my noble friend, both noble Baronesses who have spoken and place a copy in the Library setting out exactly what we intend to do. The advice I have is that, although we were very nearly compliant, there were certain things that we had to do through primary legislation—and we have found this vehicle through which to do them—and other things that we can do through secondary legislation. Obviously it would be right for me to spell that out in detail.

My noble friend also had some queries about the drafting of the new clauses. In particular, he was concerned that the new clauses referred to offences committed by “a person”. I can assure him that “a person”—as I am sure the noble and learned Lord, Lord Scott, would have confirmed if he was still in his place—includes legal persons. That will include companies and other bodies, other than an individual as he and I understand that. That is the nature of the law.

--- Later in debate ---

[Baroness Hamwee]

My speech moving Amendment 177 will be a little longer than the previous speech. This amendment takes us back to powers of entry to probe one particular point. I must make it clear that I support the restrictions on powers of entry. I know that the matter is likely to be pursued further on Report, and there are bound to be particular issues around particular powers. This power is one where I fear we may be in danger of throwing out a long-standing baby with the bath water.

My amendment would mean that the commencement of Schedule 2 would not be automatic but dependent on an order by the Secretary of State. It is merely a device to raise an issue which came to my attention only a few days ago, well after we had dealt with Schedule 2. Paragraph 12 of that schedule repeals Section 8(2) of the Landlord and Tenant Act 1985, which gives a landlord power to enter premises to view their state and condition. I had minor experience of this in the first flat I lived in in London. The landlord with, I am sure, entirely benign intentions used to come in and potter around. I could tell from the grains of coffee left around that he had been there, and on one occasion, he repainted the kitchen, but did not move the towel hanging on the back of the kitchen door and painted around it. That is minor against the issue of a property being fit for human habitation, which is the subject of Section 8 of the 1985 Act.

The landlord has an obligation to keep the property fit for human habitation. Most modern tenancies have a power of entry written into them—a contractual power, if you like—so there is no need for a statutory power, but the British Property Federation, which has raised this point with me, estimates that of the 120,000 or so regulated tenancies, many of which are very old and rely on statutory terms and conditions, something between 18,000 and 24,000 rely on statutory powers of entry. In other words, there is a legal and, I would say, moral obligation on a landlord, but he will have no means to inspect the property and fulfil the obligation. Unlike modern assured shorthold tenancies, these tenancies often encompass some of the oldest parts of the housing stock, from before 1919. They tend not to have turned over frequently and there is a pretty high probability that if they are not kept up to a good standard, they may become unfit.

I know that this matter has been discussed between the Home Office, looking at it from the point of view of the powers of entry, and the Department for Communities and Local Government. I also know that an issue has been raised that because these tenancies are subject to very low rent limits, they would not in fact come within the scope. I want to anticipate that argument by saying—again, I understand this from the British Property Federation—that the rent limits are those that were in the original contract and cannot really be cited now because that is the historical event which brought them within the scope.

The British Property Federation is very clear that the provisions in the 1985 Act are not redundant. It seems that there is a real issue here, where we should not let our enthusiasm for the principle over powers of entry obscure the need to address it. I would be the first to say that this amendment does not address it. I am merely trying to bring the issue into play at this stage—a late stage, I know—and I look forward to hearing what the Minister has to say on this. I suspect that it may be another matter where I am going to add to his diary commitments by suggesting that detailed discussion might benefit us all, but for the moment I beg to move.

[Lord Henley]

My Lords, as my noble friend has explained, the amendment relates to concerns that have recently come to light over the proposed repeal of Section 8(2) of the Landlord and Tenant Act 1985, as provided for in Schedule 2 to the Bill. This provision in the Landlord and Tenant Act grants landlords a power of entry to ensure that their properties are fit for habitation. The Act sets very low rent thresholds for London and elsewhere, which were agreed some considerable time ago. Because those rent levels were so low, it was originally our belief that there were no longer any existing tenancies to which the Section 8(2) power still applied. That being the case, we thought that the power could sensibly be repealed. It has since come to our attention from the same source that my noble friend mentioned, the British Property Federation, that there is a significant number of legacy properties to which this provision continues to apply. The BPF has indicated that there are in fact some 18,000 to 24,000 tenancies where this power of entry would continue to operate.

Landlords have a duty to ensure that the properties they rent are fit for habitation. In the overwhelming majority of cases, we would expect tenants freely to admit the landlord into their property to inspect it. In such cases, landlords have no need to use their statutory power of entry but in isolated cases the tenant may not be co-operative and there is therefore a continued need for this power. While we still intend to repeal this power of entry we propose to introduce a saving provision, using the order-making power in Clause 110, to ensure that the power remains available in respect of existing tenancies. In the case of any new tenancies, a power of entry can be provided for in the tenancy agreement as would normally be the case, as my noble friend will be fully aware as a solicitor. I thank her therefore for raising the matter. I hope that we do not need to have a meeting on this occasion, that she is satisfied by the explanation that I have given and that she will be happy to withdraw her amendment.

Immigration

Debate between Baroness Hamwee and Lord Henley

Monday 19th December 2011 Lords Chamber

[Lord Henley]

The very simple reason is that some—particularly in the private sector, which is why I referred to private sector colleges—were involved in an abuse. If there is an abuse of the system, we have a duty to tackle it, and that is what we have done.

[Baroness Hamwee]

My Lords, the Minister may be aware of a recent report from the London Chamber of Commerce and Industry entitled Migration Reform: Caps Don’t Fit. It concludes:

“Our research shows that one of the main reasons companies recruit from beyond the EU is their desire to explore and invest in new, overseas markets”.

It also says that, if the UK’s economic recovery is to be export led, this is a particularly important consideration. Does the Minister acknowledge that?

[Lord Henley]

My Lords, I think that I have followed what my noble friend has said. Obviously, we recognise the importance of universities—as I said in response to the question from the noble Lord, Lord Hannay, they are a major part of our exports. However, I also see what my noble friend is getting at. I have not seen the research that she refers to, which talks about the need to bring in workers from outside the EU. However, the point that I was making in my first supplementary answer was that we have a cap on the number of skilled workers, and we have not got anywhere near that cap in the first six months of this year.

Justice: Evidence

Debate between Baroness Hamwee and Lord Henley

Thursday 15th December 2011 Lords Chamber

[Lord Henley]

The noble Baroness is absolutely correct. I was not trying to imply any criticism of the group; I was saying that it has put forward a solution that we have found a number of problems with. We will continue to look at any ideas that it puts forward. If we could use intercept as evidence in a manner that was safe and appropriate, we would, but again I stress that we have to get the right balance between advantage, costs and risks.

[Baroness Hamwee]

My Lords, when I heard the Minister’s original Answer I wondered whether it was a case of changing the membership if you do not like what is being said, and in this case I would welcome that. However, does the Minister accept that the longer this goes on, the less trust and confidence there is among those of us who take an interest in this about whether there is a real determination to reach a good and useful outcome?

[Lord Henley]

My Lords, the only reason why the membership changed was because the noble and learned Lord, Lord Archer of Sandwell, stood down due to reasons of health. He has been replaced by Shaun Woodward, and there is nothing else behind that.

Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011

Debate between Baroness Hamwee and Lord Henley

Wednesday 14th December 2011 Grand Committee

[Baroness Hamwee]

My Lords, on the point about the timing of the measure, is the Minister satisfied that individuals and employers will not experience any practical problems as a result of that? I cannot quite get my head round what practical steps need to be taken. Is it the case that an application has to be made for a new accession work authorisation document and that there may be individuals—this goes to the question of the noble Lord, Lord Hunt, about numbers—who might have expected that they could continue to work for the same employer in this country beyond the end of this year but will, in effect, be given a matter of a very few working days to apply for the authorisation? Perhaps it is not as few days as from now until the end of December as the regulations were made—oh no, the regulations come into force on 30 December. I am getting very confused about the dates. I suppose that the warning was there for the employers but the regulations will not be made until the day before they need to be in formal terms, but there may be practical implications for individuals caught up with this. I hope that I have made myself at least moderately clear. The Minister is nodding, so I am glad about that.

In applying the tests, which the Minister has told the Grand Committee are about both the labour market and skills, will there be any changes from those that have been applied? My other question was about other EU member states. The Minister told us what some states are doing, so are we to understand that, in effect, the other member states are all maintaining their own status quo apart from Spain, which is reimposing restrictions, so that there is no other change across the European Union? The point has already been made that this cannot be looked at in isolation.

[Lord Henley]

My Lords, I am grateful to the noble Lord, Lord Hunt, for referring to the Migration Advisory Committee and its work, on which we are very dependent. He then asked me to speculate how many individuals might come in if we did not seek this further two-year derogation. I do not think that it would be helpful to try to do so. I offer as a little warning some advice to the noble Lord. He might remember that the Government, of which he was a member when Poland and other countries acceded to the European Union, did not seek any derogation on that occasion. It was suggested that the numbers coming here would be very small indeed. I forget the figure, but as we saw, the numbers coming in were exceeded by a matter of 10 or a hundredfold. That is why the noble Lord’s Government were very keen in 2006, with the further accession of Romania and Bulgaria, to make sure that we did have proper controls on the numbers coming in. We obtained that derogation, which other countries also obtained, for five years that could then be extended for a further two years. I shall not speculate on the numbers because, as the noble Lord will remember, it is very easy to get them wrong and to do so by a factor of—let us say, X, but a big factor.

The noble Lord then went on to complain about the timing and mentioned the Merits Committee. I appreciate that we received some criticism, and my noble friend Lady Hamwee also mentioned those problems. I can say that I think many people will have known that this was likely to happen as we had the ability to extend the five years by two years, as long as we did so by the end of this year. We issued this SI on 23 November, which, as my noble friend Lady Hamwee knows, does not come into effect until the end of the year. The Migration Advisory Committee published its report somewhat earlier in the month so we all knew that it was coming, and most employers knew that it was coming. My noble friend had some concerns about the difficulties that some employers may have but I can assure her that any individual who is working for an existing employer will not require fresh authorisation if he stays with that employer. Obviously, there will be a difference if he moves. There will be no changes to the criteria for granting authorisation at all.

The final point was about other member states. Obviously, it is very important to look at what other member states do because that will affect how many people come in. As the noble Lord will remember, when Poland and others were coming into the EU, other member states sought a derogation for a number of years. We did not and that is probably one of the reasons why a very large number came here. On this occasion things have happened differently, and as I mentioned in my opening remarks, Germany and the Netherlands are both seeking a derogation and Spain seeks to extend its derogation. Different things are happening in different countries of Europe, which is a matter for them to decide. We have made our decision based on the advice from the Migration Advisory Committee, which took into account what was happening in other countries in Europe. I shall write to my noble friend to give further details of what other countries are doing if she would like that. The important thing is that we took their actions into account in our decision.

Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011

Debate between Baroness Hamwee and Lord Henley

Wednesday 14th December 2011 Grand Committee

[Baroness Hamwee]

Like the noble Lord, Lord Hunt, I resist entering into a debate on working dogs’ tails, although it was the very point that I marked when I first read the regulations. I will not repeat questions that he asked that arise from concerns expressed by the Association of Police Authorities, save about a couple of matters, one of which is to ask about updated information on what I would describe as interlocking regulations; they may not formally interlock, but in practical terms they will.

The noble Lord, Lord Hunt, talked about politics being played with in complaints. It is not always the subject of a complaint who has played politics; quite often the complainant uses procedures to play politics.

It is not directly a subject of the statutory instruments, but closely related is the proposed funding of police and crime panels. I have heard concerns that the funding will be very low indeed, only enough for one member of staff and perhaps four meetings a year. These regulations are, one hopes, only a small part of the remit of the police and crime panels, which need to be funded—not extravagantly, but adequately and appropriately. The legislation gives them a wider remit than just complaints.

Thinking about that made me wonder whether that was why, in the consultation process, it was proposed that the police and crime panel should be able to delegate to the chief executive of the police and crime commissioner; the noble Lord, Lord Hunt, has already referred to that. I am a bit uneasy, not because of the point about impartiality or objectivity which the APA has raised, but because it seems to confuse the roles of the two entities.

Nor am I immediately convinced about using the local code of conduct in the case of the Mayor’s Office for Policing and Crime and the deputy if the deputy is an Assembly Member, because of their own role in creating that local code. That raises some quite interesting issues. We do not really know where we are with codes and local government yet. I asked one of my colleagues who is still a councillor, and he says that a lot of consultation is going on, but of course these are to be local decisions, even if local authorities adopt the same or a similar standard.

I also want to ask about Regulation 26(4) of the complaints and misconduct regulations; this is a detail, I know.

I was interested that the IPCC will be able to take a view as to whether what is a possible criminal offence is “appropriate”—that is the word—to be considered by the Director of Public Prosecutions. I am sorry that I gave the Minister so very little notice of this matter. As I have said to him, I only managed to look at these regulations at lunchtime. But it seems rather odd to put that power in the hands of the IPCC.

I am interested that the regulations modify Section 22 of the 2002 Act. They seem to do little more than substitute the dramatis personae. As now, the Secretary of State’s approval will be required for commission guidance but, as far as I can see, the power for the Secretary of State herself to issue guidance is new. It may be that the 2011 Act has allowed for this. I would just pause on regulations adding that right for the Secretary of State—not that you could ever stop a Secretary of State issuing guidance—but it might affect the status of the guidance. I do not know whether the Minister will be able to answer my question, which, in effect, is: is there a substantive change brought about in this by the regulations?

[Lord Henley]

My Lords, I am grateful to both noble Lords for making clear that they do not want me to go any further on working dogs’ tails and we will leave that for another day. Perhaps I may start by making a brief reference to my noble friend Lady Browning who, after all, took the Police Reform and Social Responsibility Act through Parliament. She completed that before she stood down, at which point I moved to the Home Office, and we are very grateful to her for all that she did. I think that the noble Lord, Lord Hunt, is mistaken in describing that Act, which is now on the statute book, as being misguided. As I have made clear, it is now a done deal and Parliament, as I have said, has spoken.

The noble Lord also complained about the rush that is taking place. I do not believe that there is a rush. Obviously, things are marginally tighter for London where things happen faster than in the rest of the country, but the rest of the country has until 22 November 2012. I am sure that it—and the Met—will cope. Certainly, we have had no expressions of concern from the Met about that.

The noble Lord also asked about training programmes and what we are going to do to get the PCCs into the right position for when they are set up, which is obviously of very great concern to my right honourable friend, Nick Herbert, the Minister with responsibility for policing and crime. He chairs a transition board, which includes all the key parties, including the chief executives of police authorities. I assure the noble Lord that everyone involved will be included. My right honourable friend has got the message and he is making sure that something effective will be set up and that we have an efficient transition.

The noble Lord was also worried about the number of further instruments that will be needed to set up these regulations. I referred to a jigsaw and this is just a part of it. Not all of what is coming through will be statutory instruments that will need to go through this House, although some will be. In order to get the detail right, it would probably be best if I wrote to the noble Lord to give him a timetable to assist him in this matter.

He also spoke about the absence of any code of conduct, which was also raised by my noble friend Lady Hamwee. I must make absolutely clear that these bodies will be subject, as elected bodies, to all the noble principles by which we abide. That was clearly set out in the protocol. It is also obvious that they will possibly wish to establish certain locally designed meaningful codes of conduct which they think are appropriate for them. Again, that deals with one of the concerns of my noble friend.

The noble Lord was worried about the absence of any sanctions for dealing with police and crime commissioners. What he must remember is that they are democratically elected bodies. Ultimately, that is the sanction. That is why we brought them in and why we think they will do a good job. They will conduct their business in public, so transparency will be a key tool in how the public view them. I think that this will be a great improvement on the system we have at the moment.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Tuesday 13th December 2011 Grand Committee

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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]

Indeed. I beg leave to withdraw the amendment.

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[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.

--- Later in debate ---

[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.

Police: Officer Numbers

Debate between Baroness Hamwee and Lord Henley

Tuesday 13th December 2011 Lords Chamber

[Lord Henley]

The noble Lord is right to draw attention to the specialist work done by individual police forces. It is obviously a matter for each individual police force and the police authority to decide on the appropriate priorities. Certainly within the Home Office, we would want to encourage them to continue with that work.

[Baroness Hamwee]

My Lords, I apologise to the House for missing the start of the Question. I had forgotten that Prayers were earlier today.

Police officers tend to retire at a relatively early age. For their own satisfaction, as well as thinking of the public purse, can the Minister say anything about continuing to make use of their expertise and experience, which is the product of both years and public investment?

[Lord Henley]

My Lords, obviously the training of an individual policeman is a very expensive process. We want to get maximum use of all policemen for as long as possible. Your Lordships will have noticed that some of the policemen who operate around this House tend to be at the older end of the spectrum. We are grateful for their expertise in providing protection for this House. Perhaps, as my noble friend Lord McNally implies from a sedentary position, they all look rather young to us. However, we do want to get as much use as possible out of all those policemen who have trained at such considerable public expense.

Immigration

Debate between Baroness Hamwee and Lord Henley

Wednesday 7th December 2011 Lords Chamber

[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

Debate between Baroness Hamwee and Lord Henley

Tuesday 6th December 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

Interpol

Debate between Baroness Hamwee and Lord Henley

Wednesday 30th November 2011 Lords Chamber

[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.

Protection of Freedoms Bill

Debate between Baroness Hamwee and Lord Henley

Tuesday 29th November 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Baroness Hamwee]

I beg leave to withdraw the amendment.

--- Later in debate ---

[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.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Hamwee and Lord Henley

Wednesday 23rd November 2011 Lords Chamber

[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

Debate between Baroness Hamwee and Lord Henley

Tuesday 15th November 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

[Lord Henley]

My Lords, I will write to my noble friend on that issue.

[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.

UK Border Agency

Debate between Baroness Hamwee and Lord Henley

Monday 7th November 2011 Lords Chamber

[Baroness Hamwee]

My Lords, perhaps the Minister will share with the House the extent of the pilot. Is there a link between that and the suggestions that we heard today in the media that staff were deployed in the wrong places? To give us some context, does he have information about the number of number of staff in the border agency workforce, the number who have already left and how many of them were on the front line? Finally, I wonder whether he might consider that the last two paragraphs of the Statement, which refer to “those responsible” being “punished” because they “put at risk … security”, may be a little premature in view of the investigations that are still to take place.

[Lord Henley]

My Lords, I again make it clear that these are only allegations at this stage. The individuals have only been suspended—two of them only on a precautionary basis. We will have to wait for the results of the independent inquiry. As to staff levels, I do not accept there has been a misdirection of staff in these matters. It is very important we use staff in the best manner possible. We all know that we have to reduce the size of the United Kingdom Border Agency. Over the spending review period it will have to lose some 5,000 or so posts. That is the nature of things when we have to deal with the cuts that we are faced with—and we know why we are faced with them.

We will make sure, as far as possible, that the staff are used in the best possible way. That was one reason behind a pilot of this sort. The initial report from the pilot seemed to indicate that it was doing rather well in terms of the increased numbers of people whom it was catching. Obviously we will have to wait for the result of John Vine’s inquiry.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Hamwee and Lord Henley

Tuesday 1st November 2011 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, I thank the noble Baroness, Lady Hamwee, for bringing forward these amendments, which are all essentially probing amendments. I commend her for so doing, as this is what the House does very well. I hope I can respond to and answer most of the points she has made in her four amendments—in fact, there are five, but they are in four batches.

If I start with Amendment 54, which is about the meaning of “appropriate”, I must first describe what subsection (9) does. It provides that a temporary enhanced TPIM order,

“may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation, in accordance with this section, of the enhanced TPIM power”.

We believe that subsection (9) is essential to the clause. It allows the Secretary of State to make the consequent provisions to make sure that the enhanced TPIM regime functions properly, and it allows for equivalent provision to be made, to occur in paragraph 7 of Schedule 2 to the draft enhanced TPIM Bill.

This specifies that the operation of Schedule 6 to the TPIM Bill, which relates to the retention of DNA, is modified in order to accommodate the ETPIM regime. In particular, it takes account of the fact that the same individual may, at a different time, be subject to both an enhanced TPIM notice and the standard TPIM notice. I hope that my noble friend will accept that.

Amendment 55 would insert a new clause after subsection (10). The provisions of Clauses 26 and 27 already ensure that the order will apply the provisions of the Bill to the enhanced TPIM regime to the extent that it is appropriate. This includes all the nuts and bolts of the TPIM regime; for example the role of the court, and the way in which the TPIM notices are varied or revoked. The provisions that are not applied to the order are those which are not yet relevant. For example, an enhanced TPIM notice may not be extended for a year under the order, as the order, unlike the enhanced TPIM Bill, only lasts for 90 days and cannot be renewed.

Amendment 56 would delete the provision allowing the Secretary of State to amend any enactment under the order-making power. The noble Baroness stated that the amendment was not quite as elegant as it ought to be. She may have raised a point that we will certainly consider. At this stage, we want to see whether that provision is necessary; we will come back to the noble Baroness, have discussions with her, and possibly bring forward an amendment on Report.

Amendments 59 and 63, which are to be taken together, relate to commencement. I think the noble Baroness was really asking not so much about commencement but rather consideration of the draft legislation of the enhanced Bill. Obviously, it must be for the usual channels to decide what is appropriate, which committees are available, and so on. However, I am sure that with discussions between the usual channels—between the Government, the Opposition and others—we will come to the right solution as to how the enhanced TPIM Bill should be considered by this House and another place, or perhaps both together, while bearing in mind the resources available to both Houses. Different noble Lords will have different views on this, to which we will listen in due course, as will the usual channels, as always. I hope those explanations are sufficient for the noble Baroness but if they are not we can discuss them further. However, with that, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I thank the Minister for all of that. With regard to his reply on my first amendment, I shall have to take his word for it. That is my failure of concentration, not his failure of explanation. It is certainly a reply that deserves to be read in Hansard as it was quite technical.

On Clauses 26 and 27 applying to the extent that is appropriate and what is not appropriate, the Minister seemed to give examples rather than a complete reply. I am sure that his brief includes examples for him to give, which is fair enough, but it would be helpful to understand the extent of the point. May I ask him to let me have a complete answer in writing after Committee stage? These clauses are quite difficult to follow. I think I said on the previous day in Committee that a flow chart would be helpful in some cases. Given the powers that the Secretary of State would be granted, it would be appropriate to have as extensive an understanding of what is meant as possible.

[Lord Henley]

My Lords, whether I can provide a flow chart is one thing but I certainly promise to write to my noble friend so that we can sort these things out between now and Report. At this stage I will just give a commitment to write to her but that commitment does not necessarily extend to providing a flow chart.

[Baroness Hamwee]

My Lords, I do not think I was asking for a flow chart but I share the Minister’s wish to get this sorted out before Report. These issues do not lend themselves terribly easily to debate across the Floor of the Chamber. As regards the enhanced Bill, I hear what the Minister has to say. I thought it was worth continuing to ask the question. I beg leave to withdraw the amendment.

Terrorism Prevention and Investigation Measures Bill

Debate between Baroness Hamwee and Lord Henley

Wednesday 19th October 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I think I heard the Minister refer—I hope I did—to plans for resources for the security services over a period which is longer than to the end of next year. If that is so, I welcome it. At the end of his speech he referred to the next four years. I welcome this because it would not be proper for this Chamber—most noble Lords not being privy to security information—to take a view as to what is required for up to the end of next year and it being something different beyond that. I am not trying to give my noble friend ammunition in favour of his argument but simply to put my concern that we should not be looking at the matter through that lens.

[Lord Henley]

My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.

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[Lord Henley]

I hope I can give my noble friend the appropriate assurances. I will just touch on the individual amendments one by one, before coming to the generality.

My noble friend’s first concern was whether the requirement to remain overnight at a specified residence for specified hours would be exercised in a way that is consistent with the ability to work. We have made it perfectly clear that the new provisions are intended to be compatible with work and study, provided these do not affect public safety. We are certainly clear that an overnight residence measure will allow an individual to work, since the hours involved will not equate to the lengthy curfew that was possible. The specified hours will also be able to take account of work commitments where appropriate, and that could include early morning or early evening shift patterns. The necessity and proportionality of each measure, including each overnight residence requirement, will be determined according to the circumstances of each individual case. The occupancy rules that may be imposed in instances where the Secretary of State provides an individual with accommodation will in essence be those that would normally apply to an individual in private rented accommodation; in other words, a standard letting agreement.

The noble Baroness has a whole list of amendments. She wants to be sure that the connection with the area an individual is sent to is substantial. I can give her that assurance from the Dispatch Box. I do not think the word is necessary but obviously we would not send, as in the example she gave, a person to the Yorkshire Dales merely because they had once visited one individual there. Yes, it has to be substantial. Wherever she uses the word “reasonable”, again, we would want to ensure that “reasonable” was understood to be part of the Secretary of State’s decision.

The noble Baroness touched on the police reporting requirement. It is always the case that, where such a requirement is in place, the Secretary of State will have to act reasonably in terms of the times and manner associated with the requirement to attend a police station. Changes can be made to take account of a new job or other changes in that individual’s lifestyle. Amendment 12 touches on the idea of being able to return travel documents to the individual; for example, something like a Freedom Pass. Obviously asking for the surrender of a passport might be very necessary and obviously we would want to keep that, but I can see occasions where it might be reasonable to allow the return of something of the order of a Freedom Pass. If I am wrong in that matter, I will write to the noble Baroness.

I understand the noble Baroness’s general concerns about the lack of the use of the word “reasonable”, but I can give the assurance that it is fundamental to administrative law that the Secretary of State, or any other public body, behaves reasonably when taking decisions in any capacity. That will certainly apply to the Home Secretary in exercising her powers under this Bill, as much as it does to any other Minister or public authority taking decisions in an entirely different context. Indeed, it is a requirement under Section 6 of the Human Rights Act that public authorities—that obviously includes the Home Secretary—act compatibly with convention rights. So there is the additional requirement that any interferences with individuals’ convention rights are not only reasonable but proportionate. If the Secretary of State fails to act reasonably and proportionately in imposing measures under a TPIM notice, obviously her decisions can be challenged and potentially overturned in the courts.

Noble Lords will be aware that Clause 3 of the Bill provides that each of the measures imposed by the Secretary of State must be reasonably considered by her to be necessary to prevent or restrict the individual’s involvement in terrorism-related activity. Clause 9, which we will return to in due course, provides that the court must review that decision, among others, by the Secretary of State and that the court may quash or give directions in relation to any measures imposed where it is not satisfied with the Secretary of State’s decision-making, including where she has acted unreasonably or disproportionately. Therefore, my noble friend’s amendments are unnecessary as their effect will be achieved without it being necessary to amend the Bill, and I hope she will feel able to withdraw them.

[Baroness Hamwee]

My Lords, I will certainly do so. I am very grateful to the Minister. Perhaps he is able to comment on two particular matters. First—and I am sorry, this is almost like trying to prove a negative—can he say how substantial or significant a connection there needs to be in requiring somebody to live at a particular residence? This may be something that you recognise when you see it so I may be asking him a question that cannot be answered in the abstract. I was obviously grateful for his response to my rather extreme example. I do not know whether it is possible to answer what is required.

Secondly, on reporting, I am sure that the Secretary of State would be reasonable; I am much less sure that officers on the ground at particular police stations will be quite as reasonable. Is the Minister able to help the Committee as to the role of the Secretary of State and the comparative role of those officers and whether, though the Secretary of State’s intentions are entirely reasonable—I use the word again—it may be possible on the ground locally for them to be distorted and life made close to impossible for the individual because an officer in a particular police station decides on what is actually an unreasonable time, for their convenience? Of course I take the point about being able to challenge through the courts but there is a limit to how many challenges there can be. This is the sort of thing that we should be able to sort out, if not to everybody’s satisfaction, then by at least answering their points, without having to go down that sort of route.

[Lord Henley]

The noble Baroness probably answered her own question, at least the first one, on what would be substantial. It is similar to the fact that we have put in “overnight” but have not defined what “overnight” is. We all know what “overnight” means; what we are saying is that we do not want that 16-hour curfew, we want people to be able to have a job, should that be necessary, but we need not be specific. This is where the reasonableness of the Secretary of State’s decision comes in. Similarly with the connection: obviously that connection is not just going to be that you have been on a day trip to Blackpool or went to the party conference there many years ago.

[Baroness Hamwee]

It once had a better reputation.

[Lord Henley]

We had better not comment on Blackpool. I suspect the noble Baroness probably understands what I am getting at and I hope the House will.

Secondly, regarding how the police act, the requirements will be set out in the TPIM notice and in that the Secretary of State obviously will have acted reasonably and set out what are reasonable requirements. It is then a matter for the police to make sure, if there is a reporting requirement, that they interpret that in the proper manner. Obviously if they do not, they will be in breach of whatever appropriate duty of care they have. Therefore, I hope that they will take notice of what that order says. I hope with that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I do not expect a response from the Minister, but I will use this last opportunity to encourage the Secretary of State, in imposing reporting restrictions, to make the sort of considerations that I have referred to entirely clear rather than just leaving them to be implied. If the Secretary of State can make that sort of thing express rather than implied, it could be a very sensible move. However, having said that, I beg leave to withdraw the amendment.

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[Lord Goodhart]

My Lords, my name is put to this amendment and while I do not have a great deal to add to it, there is a certain difficulty here about how the existing text of Clause 4 is drafted. Clause 4(1) (b) states:

“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”.

In other words, the provision covers somebody who has facilitated the commission, preparation or instigation of such acts but has not intended to do so. That is the possibility. It is perfectly possible, for instance, that someone in a shop may sell something that is, on the face of it and so far as that person knows, entirely harmless. Yet in fact it has a particular use to the person who is buying it. In Clause 4, this is conduct that facilitates the commission of an act of terrorism but that is never intended to do so.

It would be inappropriate to go ahead without some further amendment and the provision in Amendment 23 is perfectly appropriate for this purpose. It deals with,

“conduct which is intended to encourage or assist conduct falling within paragraph (a)”,

or,

“conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b)”.

That provision seems to cover the effect of Clause 4 a good deal more accurately than its present formation does. It seems to me that it is necessary to change the drafting of Clause 4 and that Amendment 23 is an appropriate way of doing it. It may be that another one can be thought of that is even better.

[Lord Henley]

My Lords, Clause 4, as my noble friends have stated, provides the definition of the phrase,

“Involvement in terrorism-related activity”,

which comes from the 2005 Act. It obviously ought to be read in conjunction with Clause 30, the interpretation clause, which also refers us back, if noble Lords will bear with me, to the Terrorism Act 2000. The starting point of our response to my noble friend’s amendment is that it is unnecessary. The definition of terrorism-related activity included in the Bill is, as I said, identical to the one in the 2005 Act. We consider that to be the appropriate definition and we see no need to change it. It is settled, it has not proved problematic or objectionable and the courts have not, for once, disagreed with the assessment of successive Secretaries of State that individuals whose activity falls under it are committed terrorists.

Moreover, the Government’s approach to this clause is underpinned by other requirements in the Bill. Not only must the Secretary of State consider that the statutory test for the imposition of a TPIM notice is met, including,

“Condition A … that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”,

but the court must review the Secretary of State's decision. As I said, that scrutiny will be rigorous and, as a result of relevant case law, it makes a finding of fact on the limb of the test relating to involvement in terrorism-related activity. It also gives “intense scrutiny” to the necessity of the notice and individual obligations.

I have looked very carefully at the amendment as set out by my noble friends. I have even produced a copy that I could share with the House, if it was necessary, showing how the clause would look after their amendment had been produced. However, I really do not think that on this occasion it is necessary. It would probably be safer and better to stick with the well-tried words that we have from the 2005 Act, with which the courts themselves have not had any problems, as I said. From the look on the face of the noble and learned Lord, Lord Lloyd, when I first mentioned that point, I certainly noticed a degree of agreement with me. If the courts are happy, I suspect we should leave well alone. I hope, therefore, that my noble friends will feel able to withdraw this amendment.

[Baroness Hamwee]

My Lords, my concern stems from the possible prospect of a less benign Home Secretary, who may misuse the clause. He—let us say he—might believe that an individual has been involved in terrorism-related activity because he, to use the example that we have given, has sold household chemicals that are to be used for something bad. I suspect that the courts have never had to face the position that I am putting forward and so have not been troubled by it. As ever, one tries to anticipate how legislation might be misused or abused, rather than used in what we would all regard as a proper fashion. However, I hear what my noble friend has said and beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, Amendment 26 is grouped with Amendments 45 and 46, which also stand in my name. We touched on this matter when I asked the Minister a question about the length of TPIMs earlier this afternoon. I thank him for his response. Nevertheless, in case there is anything more to come out on this, I will speak to these amendments.

Amendment 26 to Clause 6 would provide that Clause 6(1), which makes the rest of the clause apply, extends to extensions, variations and revivals of a TPIM notice. As I said earlier, I had difficulty in following the procedures for the different decisions which are open to the Secretary of State. Therefore, I thought it best not to be too proud about my drafting as I do not have a professional reputation to be concerned about to the extent that other noble Lords who are very well established in their fields do. That is why I tabled that amendment.

Amendments 45 and 46, which seek to amend Clause 13, may already have been answered to an extent in the previous debate. Amendment 45 would provide that condition E—that is, the involvement of the court—would apply on revival of a TPIM. I am encouraged to think that a stopping or pausing of a TPIM might be possible—that is implied by the possibility of reviving one—but that this measure would apply after a TPIM had expired or been revoked. I hope to be told that this is provided elsewhere in the Bill. If it is not, it should apply. If a TPIM notice has expired or been revoked—no doubt, for good reason—all the conditions should then be tested again. I beg to move.

[Lord Henley]

My Lords, we seem to be moving at quite a speed. My noble friend need not worry too much about her drafting. We have all drafted amendments in the past that we knew were defective in many ways but they are often a useful way of getting the Government to the Dispatch Box to explain what is going on. It is worth going into detail on this issue.

I will deal first with the substantive amendment that the noble Baroness has proposed to Clause 6—to which Amendment 45 is consequential. As drafted, the Bill requires the Secretary of State to seek prior court permission to impose a TPIM notice, other than where the urgency procedure set out in Schedule 2 is relied on. This provides an important safeguard in relation to the initial imposition of TPIM notices by the Secretary of State. However, as my noble friend has identified, there is no subsequent requirement for the Secretary of State to seek the court’s prior permission before making any other decision in respect of the TPIM notice. Her amendment would require the Secretary of State to seek prior permission before making three particular decisions. The first is to extend a notice into a second year under Clause 5. The second is to vary the specified measures, on the grounds that this is necessary for preventing or restricting involvement in terrorism-related activity under Clause 12—that is, where the variation is not a reduction in the measures or one made with the consent of the individual. The third is a proposed revival of a TPIM notice under Clause 13. The Bill does not require court permission to take any of these decisions. However, it provides a right of appeal against the exercise of each of these powers.

--- Later in debate ---

[Lord Henley]

My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.

The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.

Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,

“except where to do so would be incompatible with the right of the controlled person to a fair trial”.

That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.

That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.

[Baroness Hamwee]

My Lords, I beg leave to withdraw my amendment.

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[Baroness Hamwee]

My Lords, I beg to move Amendment 47, and will speak also to Amendments 48 and 51.

Amendment 47 concerns paragraph 1 of Schedule 3, which deals with appeals against convictions for breaches of measures. My amendment is to enable me to ask the Minister why appeals are limited in this way. A breach of a measure may turn into a criminal offence, but that is a separate matter from the measure itself. If an individual is convicted of that breach, there are consequences for the future, as there are with every criminal offence.

The Minister may say that the measure itself will have consequences. Of course it will. That is executive action without a criminal standard of proof, and so on, as we have discussed. The consequences will be social consequences, in a wider sense. If there is a conviction for a breach, that has other consequences, because of the record of the individual. Therefore, Amendment 47 is to ask the Government to explain the thinking behind that paragraph.

Amendment 48 would take out subsections (1) and (2) to Clause 18. These are about appeals against the measure, and again the amendment is to enable me to ask questions. Clause 18(1) says that there may be an appeal only on a question of law. I would be grateful if the Minister could help the Committee on how one distinguishes between fact and law in this context. How does this apply not just to the decision that there should be a TPIM order but to the detail of the measure? Is proportionality, which we have been talking about quite a lot, a matter of law? I hope to be told that it is.

My final amendment in the group is Amendment 51, which relates to Clause 19. Clause 19 provides for the Secretary of State to make three-monthly reports to Parliament, which is welcome. Clause 19(2)(a) provides that this includes and extends to the powers of a Secretary of State “to impose measures”. I am suggesting that we should add wording that makes it clear that this covers not just the fact that a TPIM order has been imposed but the detail of the measures within that TPIM order. I appreciate that it would not be proper to put every detail into the public domain. However, I do think it would be proper for the Secretary of State to spell out the sort of thing that she is doing, so that we may understand—better than we can if we are simply told that measures are being applied—just what the impact of those measures may be. I beg to move.

[Lord Henley]

I hope I can answer the noble Baroness’s three points on these three separate amendments, which we are taking together. I shall start with Amendment 47, which deals with Schedule 3. As the noble Baroness is aware, Schedule 3 provides that an individual who has been convicted of the offence contained in Clause 23 of the Bill—contravening, without reasonable excuse, a measure imposed under a terrorism prevention and investigation measures notice—has a right of appeal against that conviction if the notice or relevant measure is subsequently quashed, and if they could not have been convicted had the quashing occurred before they were prosecuted. Schedule 3 provides that the court must allow such appeals. This is obviously not a provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an important safeguard, and to ensure that the person will be able to get a conviction overturned for contravening a measure that the court has subsequently quashed.

It is therefore important that the schedule be agreed to. I know that the noble Baroness is only suggesting removing paragraph 1, but that is the operative provision of the schedule, and without it the remainder of the provisions in the schedule are neutered. I hope she therefore accepts my explanation and can withdraw that particular amendment.

Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are considering having appeals only on a point of law. We believe that the limitation is appropriate, because in cases such as this it is the court of first instance that is the appropriate fact-finding body. It is this court that has developed a particular expertise and body of knowledge in this area of national security, among a small and experienced body of judges who hear these cases. This makes it the right court to review all the material upon which the Secretary of State relies to make her decisions and make findings on that basis.

With regard to the appeal on a point of law, the noble Baroness asked us whether we thought proportionality would be a point of law. Dare I say it—I might have to be corrected—but I think she is probably correct, and it probably would be. If I am wrong, I will correct that in due course. I will certainly write to her and copy that letter to other noble Lords who have taken an interest in these matters.

Finally, I turn to Amendment 51, which deals with Clause 19. Clause 19, as the noble Baroness is well aware, places a duty on the Secretary of State to report to Parliament on a quarterly basis on the exercise of her powers under this Bill. These are specifically the powers to impose measures on a person by TPIM notice, extend a TPIM notice, vary the measures specified in a TPIM notice, and revoke or revive a TPIM notice.

Amendment 51 would amend Clause 19(2)(a) to add “and the measures imposed” at the end of the subsection. The relevant provision would thus state that the requirement was for the Secretary of State to report on her powers to impose measures on an individual via a TPIM notice under Section 2, and the measures imposed. As noble Lords will appreciate, the details of the operation of the system and the particular cases will necessarily be sensitive and could not be disclosed publicly. However, taken together, the list of matters on which the Secretary of State must report ensures that key information about the operation of the system will be in the public domain, and will be debated regularly. Crucially, this will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed.

We understand that there is interest in as much information as possible being made available about the operation of the system and about the cases of those individuals subject to the measures. That has certainly been the case in relation to control orders and it is likely to continue in relation to TPIMs. Having that information available will help to ensure that any debate about the powers is as informed as possible.

[Lord Henley]

The ingenuity of the noble Lord and others will find ways in which this House, which seems to have a more liberal approach in these matters, can debate these quarterly reports. There are Questions, Questions for Short Debate and all range of things, but it is not necessarily for the Government to offer those. As regards the debate next week, I look forward to it.

I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to withdraw her amendments.

[Baroness Hamwee]

My Lords, I am grateful for the reassurance on my Amendment 49, which takes a stand on a question of law in this context, and I hope that the Minister and I are correct. On Amendment 51, I accept the sensitivity of the detail, which I acknowledged in introducing the amendment. However, I remain concerned that the type and extent of the measures being imposed are reported on. The clause is welcome and I want to make it work well for Parliament and others in the transparency for which we are all aiming. I might therefore like to take the opportunity to discuss with the Minister how one can meet the point without going over the top, which I am not trying to do. I beg leave to withdraw the amendment.

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[Lord Carlile of Berriew]

My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.

Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.

I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.

On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.

[Lord Henley]

My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.

Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.

Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.

[Baroness Hamwee]

My Lords, I ought to take two minutes to withdraw the amendment—that might be obscure to anybody reading this—in order to take us to the agreed time of 8 pm. Of course I understand and accept that the measures proposed by the Bill are less severe than control orders. That is the point of the Bill. Not all of them are, because there is the possibility of enhanced TPIMs. I take the point, but it does not quite cover the ground.

I understand the point made by my noble friend Lord Carlile about a series of breaches. I talked earlier—I am not sure whether he was in his place—about the need not just for the Secretary of State to be reasonable about reporting requirements, but for police officers on the ground to be reasonable.

Of course, our experiences and what we hear are not the same, and I could never have the particular experience that he has had, but I hear of the danger of people who are under such orders becoming so despairing that they almost do not care if they breach.

The real thrust of this amendment is the importance of the involvement of professionals who are of the individual’s nomination, not just those who are provided by the Home Secretary. If I say “by the state” it may sound like One Day in the Life of Ivan Denisovich but I say “the state” quite deliberately because that is how it is perceived in this situation. My amendment suggests the formation of something akin to a case conference with the considerable involvement of an individual or organisation of the person’s choosing because of the interpretation or perception, which I suppose is inevitable in this situation, that anybody who is provided by the state is not going to be neutral, far less on the individual’s side. Having said that, I beg leave to withdraw the amendment.

Visas: Domestic Workers

Debate between Baroness Hamwee and Lord Henley

Tuesday 18th October 2011 Lords Chamber

[Baroness Hamwee]

To ask Her Majesty’s Government, in bringing forward proposals to end the Domestic Workers visa, what consideration they have given to the protection of the rights of domestic workers.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the rights of overseas domestic workers in private households are discussed in the Government’s consultation document, Employment related settlement: Tier 5 and overseas domestic workers. The consultation sets out a number of proposals for reform, which include making protections more appropriate should the route be retained. We are currently considering the responses that have been received.

[Baroness Hamwee]

My Lords, the Minister will understand that the portability of the current visa, which means a worker can change employer as long as he or she remains in domestic work, is fundamental to safeguarding the rights of that employee and to safeguard against bonded labour. He will appreciate that I refer to rights such as to be paid at least the national minimum wage, not to be forced to work excessive hours and so on. There are some horrific stories. On Anti-Slavery Day—and every day should be regarded as Anti-Slavery Day—will the Government take into account the need to be very mindful of the rights of all who work in our country?

[Lord Henley]

My Lords, my noble friend is right to raise this issue on Anti-Slavery Day, but she is also right to say that we should take account of these matters on every day of the week and obviously we will. Settlement has almost become automatic for those who wish to stay in the United Kingdom under these arrangements, and the consultation is about being more selective about those who wish to stay permanently while also, as my noble friend puts it, making sure their rights are safeguarded.

Terrorism Act 2000 (Remedial) Order 2011

Debate between Baroness Hamwee and Lord Henley

Wednesday 5th October 2011 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, this order is made under the Human Rights Act 1998 and replaces the stop-and-search powers found in Sections 44 to 47 of the Terrorism Act 2000, often referred to as the Section 44 powers. These powers allowed police constables to stop and search individuals at a time and in a place authorised by a chief officer and search for articles which could be used in connection with terrorism, whether or not the police suspected the presence of such articles. The European Court of Human Rights found that the powers were not in accordance with the law. That ruling became final on 28 June 2010 and the Home Secretary made a Statement in another place on 8 July, stating that the use of the powers without reasonable suspicion would be suspended pending a review. The powers were subsequently reviewed as part of the Government’s wider review of counterterrorism powers. As a result, the Home Secretary announced that Section 44 would be repealed and replaced with a significantly circumscribed power. The Government have brought forward these proposed changes in the Protection of Freedoms Bill. However, the review also recommended that consideration should be given to whether the new powers should be made available more quickly than the Bill will allow. The remedial order before us is the result. The order has been made under the urgency procedure in Schedule 2 to the Human Rights Act 1998. The order will lapse on the passage of the similar powers currently under consideration in the Protection of Freedoms Bill in another place.

It is apparent from the European court’s ruling that there is an incompatibility to address. It is also the Government’s view, on the basis of operational advice, that given the very serious circumstances in which the new powers might be used, it was necessary to make them available using the emergency procedure which allowed the change in the law to take effect immediately. It is a fairer and more focused power with significantly stronger safeguards. It provides the police with what they need while ensuring that there are robust safeguards to prevent misuse.

The new powers inserted as new Section 47A into the Terrorism Act 2000 require that an officer reasonably suspects that an act of terrorism will take place and considers that the powers are necessary to prevent such an act. This is a significantly higher threshold than in the old Section 44 power. Furthermore, an authorisation under new Section 47A can cover only a geographical area and a period of time necessary to address the threat. The maximum period of authorisation has been reduced from 28 days to 14 days. The purpose of the stop and search has also been tightened so that the use of the powers is more closely aligned with the particular threat. In addition to these changes, there is a robust statutory code of practice. This sets out the detailed requirements for the authorisation and exercise of the powers, prohibits the continuous renewal of authorisations and requires effective monitoring and community engagement.

This order provides police with the tools they need to address a serious terrorist threat but represents a clean break from the years of misuse of the disproportionate and discredited Section 44 powers. I commend the order to the House.

[Baroness Hamwee]

My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.

As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.

I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.

I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.

Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.