Investigatory Powers Bill

Debate between Baroness Hayter of Kentish Town and Lord Harris of Haringey

Tuesday 19th July 2016 Lords Chamber

[Lord Harris of Haringey]

My Lords, as I said earlier in Committee, it is important that, in assessing any proposal made in the Bill, we strike the balance between the need for it and any possible negative consequences, and whether that may weaken the security of a device, enabling the malign elements, as opposed to benign, to penetrate systems. As I understand it, the purpose of the amendment is to try to ensure that that balance is clear in the Bill. It would place an obligation on those seeking warrants and those considering them to look at whether that balance has been struck and ensure that it has.

It is reasonable for those seeking warrants to demonstrate that they have considered whether there are any negative consequences of the action they are prepared to take, particularly if it leads to a weakening of the general security of a wider system that may mean it is prone to attack from cybercriminals or others accordingly, or that there is likely to be a large amount of collateral damage in other people’s information being made available to the authorities.

I make it clear that I do not think the fact that the information of other people who are not the purpose of a warrant may be compromised is necessarily a reason why we should not proceed with this. It should be balanced with the consequences. For example, I can conceive of circumstances where a warrant might be sought for a machine in an internet café. Clearly, that is because certain individuals are thought to be using it. In any application I would want consideration to be given to what would be done about those other, presumably entirely innocent individuals who might use the same machine.

I am concerned that, as part of the process, there should be consideration of the downsides of a particular application: whether it is weakening the system or interfering with the privacy of other people who are not specifically targeted. If either is the case, there should be clear consideration of what can be done to minimise those risks. The fact that another person is not the subject does not necessarily mean that it should not be proceeded with. It is a matter of proportionality—the benefits that will be gained from the action being taken and whether those are properly considered by those making the application and those considering whether to approve it. For those reasons, the amendment is broadly helpful. I hope that Ministers may be prepared to accept this or something like it to provide that assurance.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I added my name to Amendments 159 and 160. Amendment 164 is in my name and that of my noble friend Lord Rosser. Our points are much the same as those made by my noble friend Lord Harris. I do not think there will be planting of evidence, for example. Our concern is much more about the risk to any public cybersecurity system, and we would want that to be taken into account. These amendments follow the recommendations of the Joint Committee. The idea is to minimise any potential risks. If, for example, the Secretary of State has to take into account any risk to the security and integrity of the networks, that by itself will ensure that any applicant sets that out in the form they submit. We hope the Government will respond, as my noble friend Lord Harris said, not necessarily by using these exact words but in the spirit of these amendments in order to retain overall security.

Investigatory Powers Bill

Debate between Baroness Hayter of Kentish Town and Lord Harris of Haringey

Wednesday 13th July 2016 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, Amendment 93 stands in my name and that of my noble friend Lord Rosser and is on the same issue of encryption. Encryption is fundamental to keeping the whole of the digital economy safe and secure. It is widely used by business, government and consumers to protect sensitive and confidential information and as a building block in the advanced security technology which has been described.

The undermining of encryption would not simply mean that the communications of criminals could be read more easily; it would risk creating a major vulnerability in the security infrastructure, which could be exploited by various malicious actors, be they criminal gangs or rogue states. So it is important for this economy and for all the financial and other businesses that depend on it that the foundations of encryption technology remain absolutely firm.

There will be times when state security undoubtedly needs access to encrypted information for a specific investigation. This is not the problem. The problem is whether the Government would ever require a company to engineer such access, enforcing the company to create a model which, if then followed by other nations with perhaps less security than ours, would lead to a lowering of standards. We welcome the statement by the Government that they do not require industry to build back doors into their encrypted products. The Bill as it stands is perhaps not as clear as the commitments the Government have made.

Clause 226 risks making encryption intrinsically weaker if a company could be asked to build the ability to break the encryption. Amendment 93 seeks to address that. We hope the Government will understand that, when the request is made, they should not ask a company to develop a new way of breaking encryption that is not already within its ability. At the moment, the clause implies that, where companies that did not have the ability to remove the protection were issued with a notice, they would be required to build that capability so as to adhere to the notice. That is worrying the companies because of the general undermining of encryption. End-to-end encryption is essential to protect sensitive personal, commercial and security information. I think the Government share our concern that we should maintain that.

The thrust of Amendment 93 makes it explicit that a company would be required to remove the electronic protection only where it had the current capacity to do so and that it should not have to engineer it. We hope it will be accepted by the Government.

[Lord Harris of Haringey (Lab)]

My Lords, first, I should draw attention to my interests in the register on policing and counterterrorism matters. Secondly, I should make clear that my starting point on the Bill is that it is important that the developing gaps in access to communications data are addressed to protect the nation against all sorts of threats.

In any set of counterterrorism or counterespionage measures, or whatever else it might be, you have to look at the balance and weigh the benefit to the nation in protecting its citizens by having those powers against the potential downside or consequences of exercising them.

When we come to the question contained in this group of amendments—essentially about enabling or requiring companies to break the apparent encryption—we have to look carefully at the potential downsides presented by this. The first downside, or danger, is that by enabling this to happen—by creating the mechanism and requiring companies, as my noble friend Lady Hayter said, to make new arrangements so that encryption can be broken—you create a back-door mechanism. This would be available not just to the forces of good—those who are trying to protect all our security—but to cybercriminals and those who would do us ill. Therefore you need to weigh clearly what you are trying to do against whether you are creating something that will make it easier for criminals and those who would do us harm.

The second element is the extent to which what we do in this country sets a precedent that will be seized in other countries, whose interests may not be the same as ours or as positive as ours towards their citizenry. If we create that precedent, what is to prevent Governments in other countries saying that they want the same powers and therefore doing the same? That test has to be applied to quite a number of the measures in the Bill. As I say, my starting point is that I want the state to be able to fill the gap in its access to communications data that is emerging and opening up. However, I want to hear from the Government a clear explanation of why in this set of cases the benefits outweigh the potential disbenefits.

Consumer Rights Bill

Debate between Baroness Hayter of Kentish Town and Lord Harris of Haringey

Wednesday 19th November 2014 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, this amendment is in my name and that of my noble friend Lord Stevenson. It addresses a serious, indeed often fatal, weakness in consumer protection. When a dangerous fault occurs in an electrical product, there is no adequate mechanism whereby other owners of that same dangerous product are notified of the need to exchange it. The amendment therefore requires manufacturers to inform enforcement authorities about the number of consumers affected and the extent of damage and injury that has been caused. It also requires the Secretary of State to publish information on dangerous products.

It is estimated that approximately 40 to 45 deaths a year are caused by faulty appliances. Although there is a system for recalling dangerous products, it is deeply flawed because of the difficulties of alerting consumers who bought such faulty products and because of unjustifiable delays on the part of some manufacturers in recalling products, even once they know them to be unsafe. Such cases relate to potentially fatal faults arising either from fire, electrocution or carbon monoxide poisoning. Indeed, probably more than 1 million faulty products are still in people’s homes.

The problem is that manufacturers currently have no legal obligation to declare how many such dangerous applications are in circulation. Furthermore, once a manufacture becomes aware of faults, there is no specified timeframe within which they have to act to have others recalled. Some manufacturers have taken years to take action after accidents caused by their appliances. The BIS guidelines are that recall should be expected as soon as the manufacturer becomes aware of the problem, but that is not specific enough. Even more important, perhaps, it is not mandatory. Sadly we see preventable deaths occurring because of failings in the recall system.

I spoke in Committee about the case of Santosh Benjamin-Muthiah, a 36 year-old father of two who was killed in 2010 by a fire caused by a fridge freezer that had been recalled. The manufacturer had been aware of the fault three years earlier but failed to issue a safety notice until 2011—in other words, a year after the death of Santosh Benjamin-Muthiah. By that time, half a million defective fridge-freezers had been sold. Even two years after the recall started, there were probably 100,000 still unidentified in people’s homes.

In another case, Beko was fined £76,600 for failing to inform trading standards of a serious risk posed by some of its cookers. Despite being aware of the fault in 2009, Beko notified trading standards only in 2013. Hotpoint recalled dishwashers with a fire risk a whole year after Which? had raised concerns about them. So there are problems of late starting but, even once something starts, the average success rate for product recalls is only between 10% and 20%.

The current voluntary and slightly haphazard approach is clearly not working. On the one hand, manufacturers fail to recall—due either to cost or to worries about reputational risk, in which case sanctions are inadequate. On the other, despite the producers’ best efforts, current practice is dangerously inadequate, leaving thousands of faulty products in circulation.

In Committee, we asked the Government how many cases of preventable deaths were documented. The Minister responded by letter, saying that she was unable to provide the number of fatal injuries caused by unsafe electrical appliances. However, the DCLG fire statistics do have the data, which show that there were more than 16,000 fires a year caused by faulty products, leading to 15 deaths and nearly 800 injuries. Electrical Safety First’s research into consumer attitudes towards product recalls demonstrated a strong appetite for change. Its report, Consumer Voices on Product Recall, found that a quarter of people thought there was already a central repository of all recall information. So the website called for in our amendment would create what many consumers assume already exists.

Only one-third of consumers always fill in the registration form down at the bottom of the packet when they buy electrical products—we have all seen it there. Six out of 10 say they would be more likely to fill it in if reassured that the information would not be used for commercial gain. Only an independent database, as proposed in our amendment, would deliver this peace of mind. An industry-led list would not encourage people to register, because they would believe that their details would be used for marketing. Of 17 registration forms analysed, only one mentioned safety as a benefit of registration—so it is no wonder people do not think they want to sign up. It is simply not the manufacturers’ priority and it will not become their priority until legislation compels them to take action. Peter Dartford, President of the Chief Fire Officers Association, said:

“The reality is that it is the manufacturers who have created these risks and it is their moral and legal responsibility to ensure these risks are eradicated from homes”.

At the inquest into the death of Mr Benjamin-Muthiah, the coroner called for the creation of a simple, easy to use, government-funded or national website where all faulty products could be registered and accessed by consumers and retailers. He called also for increases in the fines for manufacturers who failed to notify and the creation of a code of practice on product recalls. Our amendment would strengthen consumer protection in line with the views of the coroner, of consumers and of the fire officers, to say nothing of the views of the families of those who have died needlessly. I beg to move.

[Lord Harris of Haringey]

My Lords, about a year ago, in my capacity as chair of the National Trading Standards Board, I had a meeting with what I think was then called the Electrical Safety Council, now rebranded as Electrical Safety First. We were not discussing this issue but it was raised as one of the concerns that the then Electrical Safety Council had about the way in which the recall system worked.

My noble friend highlighted a number of concerning issues. These include, for example, the length of time that often seems to elapse between manufacturers becoming aware of a product failure or an incident, even one leading to an inquest, before they take action to recall products. Their recall efforts are often minimalist in trying to make sure that the message reaches consumers.

I hope that the Government are not simply going to tell us that self-regulation works best and that the systems in place are adequate. The examples that have been cited and the fact that this remains a continuing concern show clearly that action needs to be taken along the lines of my noble friend’s amendment.

Consumer Rights Bill

Debate between Baroness Hayter of Kentish Town and Lord Harris of Haringey

Monday 27th October 2014 Grand Committee

[Baroness Hayter of Kentish Town]

I am feeling very proud as I managed to renew my passport online and got it from the Passport Office in, I think, 48 hours. I thank the Passport Office for being able to do that online and for its incredible efficiency.

In moving Amendment 50F, which stands in my name and that of my noble friend Lord Stevenson, I will speak also to Amendments 50H and 50J. These concern issues that we addressed when we discussed the Bill’s provisions in relation to goods. We are worried about consumers whose personal safety is at risk due to the quality of workmanship in their house. They should not have to have the same people back to make a first attempt at repairing whatever they have botched before being able to ask for a refund of their money and any associated costs. The importance of the amendment will be clear to all consumers.

A trading standards representative gave written evidence to the Public Bill Committee in the other place that the remedy in the Bill was insufficient where dangerous service was involved. In these circumstances consumers should have the right to end the service and get their money back. At present, the Bill enables consumers who find that a service is not undertaken with reasonable skill and care—a normal service, if you like—to have that service undertaken again and to get their money back or obtain a price reduction only if the repeat service does not work. These amendments address the problem whereby a consumer’s personal safety is at risk and would allow them to move straight to obtaining a refund rather than risk their safety any further by having to have a repeat performance by an incompetent or careless supplier.

On a previous occasion we gave the example of a gas fitter who services a boiler and causes a leak or a builder who knocks down the very wall that he is meant to be building. These may appear extreme cases but, sadly, we know that they happen and we know that we would not want such tradesmen back in our houses. Therefore, we would like a consumer to be able to obtain a refund and employ another company in these circumstances without first having to have the same company attempt to repair the damage.

I know that the Government have looked at these measures in another place and feel that they are not necessary as the consumer will retain access to a common-law remedy for damages. The Bill sets out clear remedies and courses of action but for consumers to have to argue with the tradesperson in court in order to solve this problem does not seem to us a clever way forward, in addition to all the expensive legal action that is bound to be involved. This amendment would give clarity and keep these issues out of court. I beg to move.

[Lord Harris of Haringey]

My Lords, I will speak in support of this amendment. I declare a personal interest in this matter. I appreciate that this Committee has turned into an opportunity for all of us to explain our recent experiences of various sorts, but I suspect that this is one of the most recent experiences. Having had a series of problems with a boiler installed in my home, we called out—for the second time in this instance—a contractor to come to try to put it right. Last Tuesday evening I got home and, despite a slight cold, detected what I took to be a smell of gas. We summoned the appropriate people, who came with their little sniffer things, and so on, and declared that whoever had allegedly repaired this boiler and the flues had left it in a state whereby not only was there a serious gas leak but there was a serious leak of carbon monoxide. Fortunately, the boiler is in a basement area, although presumably it could have become an excitingly combustible place. However, the reality was that it had been left in a seriously dangerous situation.

After I had spent some time swearing at the contractors—and I am tempted to use parliamentary privilege and name them, so that residents of north London are warned of these people—the offer was made that they should come to put it right. They were shocked, as I was, that they might have left this in a dangerous situation. My immediate reaction, which remains my reaction, despite the fact that we have no gas at all in the house, because the gas board has been in and disconnected everything for the sake of safety, was that these were the last people whom I would like to come in and rectify the problem. Indeed, I notice that the contractor has e-mailed and phoned me today, clearly because he wants to be paid for the work that was originally done.

This is precisely one of those areas where the consumer needs a very clear legal position. I had not actually looked at my noble friend’s amendment until today, but this is exactly what is required under these circumstances. I wish that this could be made retrospective and that I would simply be able to point to Section 54 of the Consumer Rights Act, as it would then be, and say, “Hang on, there’s no question that we’re having a full refund of the cost and any additional fees associated with bringing somebody else in”. That is what most sensible people would expect. If the Government are serious about giving the consumer sensible rights, they should provide that in the Bill.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

The noble Baroness, Lady Oppenheim-Barnes, asked a wonderful question. It was short and acute and went to the heart of the issue because the other remedies, the common-law remedies, are expensive and take a long time and any trader will know that no one is going to take them to court for £200 or £300—even my good and noble friend Lord Harris of Haringey. I am tempted to offer to come and help.

[Lord Harris of Haringey]

Is this on the public record, because I am still in discussion with the trader concerned?

[Baroness Hayter of Kentish Town]

I take my noble friend’s point about making this retrospective.

There is a serious issue here. The consultation at the beginning may not have thrown this up because when any of us respond to consultations we have not always thought about all the implications and what could happen and that there might be something dangerous. I urge the Government not to rely too much on consultation on what was a big Bill at the time. No one actually thought about this.

There are a number of issues. The major one is that on quite an important issue it reverts to the old way, which is to go to court, and that does not suit consumers. I do not think it is very good for court expenses or for the trader. Just because the consumer has a right to a refund and to find another trader, it does not mean that they will. The Minister said that some consumers will want the same trader back because they do not want to look for another one. That is fine. Nothing will stop them doing that. The amendment does not require the consumer to have a refund instead of having the old trader back. It states that they should not have to go through one repair before they have their money back.

As I think we said when we raised this and the other safety issues at an earlier stage, this is something we will need to come back to because if consumer rights do not provide the basics such as keeping consumers safe, there is something missing. We will have to think about how we can pursue this on Report. For the moment, I beg leave to withdraw the amendment.

Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014

Debate between Baroness Hayter of Kentish Town and Lord Harris of Haringey

Monday 24th February 2014 Grand Committee

[Lord Harris of Haringey]

My Lords, when the Division intervened, I was simply making the point that trading standards departments around the country have been facing substantial reductions in their budgets over the past few years. It is estimated that, overall, trading standards funding from individual local authorities will, on average, have diminished by 40% by 2015, which is a substantial change. The only assurance that I can give my noble friend Lord Whitty is that the resources for the estate agency function will be ring-fenced.

The only other point that I wish to make is that the service that will be provided through Powys County Council will, however, be branded as a national trading standards function. It will quite clearly be a national function supporting estate agent regulation throughout England and Wales.

[Baroness Hayter of Kentish Town]

My Lords, I share the views of my noble friend Lord Whitty that this is actually a sad day. I am sorry that the Minister did not pay tribute to the extraordinary work that the NCC has done over its life. It has been seen as that third part of civil society. There have always been the employers and the trade unions, represented quite rightly by their bodies; a third body representing consumers has been really important for making markets work, being a big national player along with the TUC and the CBI. It is a great sadness to lose that, particularly—and I will come back to this—given the fragmentation that the Government have managed to put in its place. This was just about trying to get rid of a certain number of quangos; we know that that is what it was. There was a rush into it and very little understanding of what the NCC actually did because, as my noble friend Lord Whitty said, there was very little duplication. I should confess—or rather boast—that I was a member of the NCC council and there was very little duplication between what we were doing and what Citizens Advice was doing. Citizens Advice deals with people coming through the door; we were trying to think of problems five, 10 or sometimes 15 years ahead.

Sadly, we lost the argument by just 12 votes at the time that the Public Bodies Bill went through the House, and my guess is that, having dealt with the complexity of transferring those functions, BIS may have belatedly recognised the force of our arguments. There are problems with Citizens Advice taking over the work of the NCC. At the moment, it can answer only 45% of its telephone calls and we have heard from my noble friend about the cuts to the advice service, so there are problems there. However, we recognise that the decision has been taken and we therefore need, or want, whatever replaces the NCC to work as well as possible for the sake of consumers. That is the important criterion.

I have five questions ready to ask about the order, but before that, I have another question. Given the report on the pre-emption of Parliament by our own Constitution Committee—which noted, when the Public Bodies Act 2011 was merely a Bill, that a number of public bodies began to wind down their activities in anticipation of abolition—can the Minister confirm that no public money was spent on the abolition of the NCC and the transfer of functions prior to the relevant approval by Parliament?

On the order, there are five areas in which we seek either assurances or answers. One is on the transfer of Consumer Focus’s statutory information-gathering powers—which have already been mentioned—to Citizens Advice. There was an earlier debate here about whether those could be overused, and in fact our Secondary Legislation Scrutiny Committee returned to that issue. My concern is different: it is the potential underuse of those powers by Citizens Advice. Given the increasing demand on it for its own advice services from very hard-pressed consumers, my concern is that it might take its eye off its longer-term policy role, which has been played hitherto by Consumer Focus. It was partly with that in mind, when the ERR Bill went through, that my noble friend and I argued at that stage that someone—I think we suggested the CMA—should have a sort of reserve power to ensure that sufficient attention was paid to this element of Citizens Advice’s work, given that its own programme and budget were laid down by its individual charitable trustees. Those trustees are not accountable to BIS or any other arm of government. Our question, therefore, is: what happens if Citizens Advice falls down on that part of consumer protection? Who would know? It would certainly not be the consumers: there is no accountability for this work to consumers. The letter that Vincent Cable wrote to the noble Lord, Lord Goodlad, on 17 January, said:

“The Consumer Affairs Minister will hold…Citizens Advice…to account for effective delivery of these functions on behalf of consumers”.

I am not clear how that will happen. Will it be done simply by the terms of the grant? If so, how will the Minister hear consumers’ views and what action would she take if, for example, Citizens Advice failed to prioritise vulnerable consumers or the users of government-provided services? How would the Minister know and what would she do if she found any such problems?