Anti-social Behaviour, Crime and Policing Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 11th December 2013 Lords Chamber

[Baroness Hamwee]

My Lords, in moving Amendment 56YJ I will speak also to Amendment 56YK. I also have Amendment 100A in this group, which is a consequential amendment. The whole of this group deals with Schedule 8, which is Schedule 7—port and border controls—in the previous legislation. My amendments have come up as a curtain raiser, though in this debate they are probably more of an epilogue. They relate to future possible action rather than to anything that might happen immediately, as would other actions flowing, in most cases, from the work of the JCHR. I am not suggesting that noble Lords who are moving and speaking to them are merely acting as mouthpieces—I know that that is not the case.

My noble friend Lord Lester is unwell and very sorry not to be here to speak to amendments in his name and to which he has added his name; my noble friend Lord Avebury has his instructions. I do not want to make a Second Reading speech at this point—perhaps speeches on these issues will be longer on Report—but I will make some general remarks. I acknowledge that the Government have moved forward a little on the relaxing of the arrangements to which this schedule applies, but like others I am eager for more.

I was interested in some of the comments that the Government included in their publication responding to the response to the review of the operation of Schedule 7. We do not have the responses published, but there are some interesting and telling comments. A self-declared police officer says:

“Schedule 7 should also incorporate a clear commitment and implementation process to the Equality Act 2010 general duty of ‘fostering good relations’”.

There are comments about,

“More tactful or less intimidating examinations”.

The report says of the community engagement events which the Government undertook that,

“The conduct of examinations was raised repeatedly”.

The Equality and Human Rights Commission commented at length on the lawfulness of stopping without suspicion. It said that,

“there should be no power to detain and question for more than 1 hour”,

on the basis that if an officer cannot articulate suspicion after 30 minutes of questions, he certainly should not detain for up to nine hours.

The Government asked whether respondents had any personal experience of being stopped and detained. I note that the proportion of those who said that,

“Schedule 7 powers are unfair, too wide ranging and should be curtailed”,

was considerably higher than the proportion who said they had personal experience. Even if you add the “prefer not to say” responses, it is still a higher proportion.

I was also interested to see the advice to examining officers following the recent case about,

“the right to consult a solicitor in private, in person and at any time during the period of detention”.

I know of a man who was detained but did not exercise that right because he was told by the officer who detained him that this was bound to lead to a delay, meaning that his wife and his elderly, infirm mother, with whom he was travelling, would be left even longer not knowing what was going on—a practice that I hope never to hear of again. Clearly, training in this is an issue.

Of course, my underlying point is about the balance between protection and security, and individual liberty, some of which is about what the Government can do through officers and some of which is about safeguards written into the legislation.

My amendments anticipate what we might be seeking if this debate were following the report by the independent reviewer of terrorism legislation when we know the outcome of the Miranda case, but I have picked up on his evidence to the recent Home Affairs Select Committee inquiry into this. Amendment 56YJ picks up two of his recommendations, 4 and 7, on the introduction of safeguards in respect of legally privileged material and on a bar to the use in a criminal trial of admissions made in the circumstances of such a detention.

Amendment 56YK shows that I am ever the optimist. I would never expect wording such as this to be used in legislation, but we are only in Committee. It seeks assurances from the Government about following through on—although I would say, for the purposes of the debate, looking seriously at—recommendations made by the independent reviewer following the Miranda case. I am sure that my noble friend the Minister will give assurances about that. I remain optimistic but also vigilant. As I said, Amendment 100A is consequential. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will speak to Amendments 57 to 64. It is important to consider the backdrop here. Schedule 7 of the Terrorism Act 2000 is a highly intrusive police stopping power and it operates outside the normal regulatory framework that covers other police powers of stop and search.

Under Schedule 7, individuals are stopped and they are not under arrest but they are examined for up to nine hours, under the current arrangements, where they can be questioned, searched and have their belongings searched; they can be strip-searched; and they can have samples of their biometric data, including their DNA and fingerprints, taken from them, regardless of the outcome of the encounter and in the absence of a lawyer. People are stopped under it and are obliged to co-operate or face arrest, a period of imprisonment or a fine for any refusal. In addition, there is no right to compensation or assistance in rearranging any flights or other transportation that they might have missed as a result of this examination or detention. It is important to see just how extraordinary these powers are.

Recent research has shown that in 2011-12—the examination of this material has only just been encapsulated in a report—63,902 stops were carried out under Schedule 7. Of these, 2,240 lasted more than an hour and 680, which is less than 1%, resulted in a detention. Although no information has been provided on the number of people convicted, and on what charges, there were just 10 terrorism-related convictions between 2009 and 2012. I have been involved in most of the cases and can tell you that none was as a result of a stop at an airport or any port. We have no convictions based on these stops.

--- Later in debate ---

I hope that all these amendments will be acceptable to the Government.

[Baroness Kennedy of The Shaws]

My Lords, before the Minister rises, perhaps I may indicate, as I did not specifically mention it, that I, too, am urging that the threshold of reasonable suspicion should be the standard before downloading, retaining and copying material on electronic devices of any kind. Even if the Government do not accept the amendment on stopping—that there should be reasonable suspicion at that point—at the very least we should move on to reasonable suspicion before we start taking people’s devices and entering into private material and retaining it.

--- Later in debate ---

On that basis, I hope that my noble friend will withdraw her amendment and that the noble Baroness, Lady Kennedy, will not press her amendments in the knowledge that we will come back to this issue at Report with clarification of the Government’s position in the light of the report and the judicial review.

[Baroness Kennedy of The Shaws]

My Lords, I thank the Minister for his very considered response to the matters that have been raised. I am grateful to him for indicating that further thought will be given to some of the matters that have been part of the debate here. I know that there will be no movement on certain things, but that there might be some movement on others. On that basis, I will not press my amendment.

[Baroness Hamwee]

My Lords, I am extremely grateful to my noble friend for his very helpful response and I am glad that there will be further opportunity to discuss these things. He has given some important assurances on a number of points. My amendment 56YK was really rather tongue-in-cheek, of course. It was also a bit of a nod to my honourable friend the Member for Cambridge, who had it down in the Commons but did not really manage to speak to it. I would not subcontract such matters, but the assurances of further consideration are very helpful to hear. I have never doubted the very serious way in which the Government are considering this.

A number of noble Lords will want to take part in discussions of this on Report. In particular, the noble and learned Lord, Lord Lloyd of Berwick, was not able to stay long enough this afternoon, and I am sure that my noble friend Lord Lester will be back to discuss it. I think that I can assure the Committee that there will be a pretty substantial debate next time round. Most importantly, we will be looking at where the Government’s thinking is going before we come back onto the Floor of the House. There are clearly very important discussions to be had. On that basis, I beg leave to withdraw the amendment.