Crime and Courts Bill [HL]

Baroness Kennedy of Shaws Excerpts

Wednesday 12th December 2012 Lords Chamber

[Lord Dear]

My Lords, in introducing Amendment 119 I have in the front of my mind the words attributed to Voltaire as far back as 1759:

“I may disagree with what you say, but I will defend to the death your right to say it”.

That is what it is all about tonight. The amendment seeks to curb what I believe is an increasing misuse of the criminal law so as to curb or prevent the proper exercise of free speech. The amendment intends that the word “insulting” should be taken out of Section 5 of the Public Order Act 1986 and that Section 6 of that Act should be similarly amended to take account of the earlier change.

It might help your Lordships if I examine the history of the inclusion of the word “insulting” in legislation to illustrate how and why we have arrived at the current state of affairs—a state of affairs that, I would venture to suggest, is wholly unacceptable. In the mid-1930s, there was a progressive increase in severe public disorder on the streets of east London and in other great cities of this country, when supporters of Mosley’s black-shirted fascists were clashing with both moderate left-wing and extreme left-wing opponents. The law then was proving inadequate to deal with the problem and, as a result, the Public Order Act 1936 was enacted. It did a number of things. It introduced a number of very serious new measures: for example, to authorise or ban public marches and demonstrations; to ban quasi-military organisations; to outlaw the wearing of political uniforms in public; and so on.

At a much less serious level, Section 5 of that Act introduced the now familiar words whereby it became a criminal offence to use “threatening, abusive or insulting” words or behaviour in a public place or at a public meeting whereby a breach of the peace was occasioned or likely to be occasioned. I would ask your Lordships to fasten on to the important words there: “threatening, abusive or insulting” and “breach of the peace”. That legislation stood the test of time, and the police regularly resorted to arrests for breaches of Section 5 in what might loosely be described as disorderly or hooligan behaviour on a typical Friday or Saturday night.

Fifty years later, as part of a general tidying-up of the law that deals with public disorder, the Public Order Act 1986 reflected much of the thinking that lay behind the old Section 5. It re-enacted the legislation that made it a criminal offence to use,

“threatening, abusive or insulting words or behaviour”,

and extended it to circumstances covering displays of any writing or sign in a public or private place within the hearing or sight of a person likely to be caused harassment, alarm or distress. It removed the reference to breach of the peace and it did not require any intent to cause harassment. Clearly, the intention of the new Act was to require a greater degree of particularity in the statute so as to increase protection for vulnerable individuals.

So far, so good, and the new Section 5 also appeared to work well for a time; but not for very long. With the wisdom of hindsight, it is clear that there has been a steady increase of cases where the words “insulting words or behaviour causing distress” were being misapplied in circumstances where individuals or organisations disagreed with comments made about their own sexual orientation, general beliefs or objectives, and where the criminal sanction offered by Section 5 was used by them deliberately to curb or suppress the proper exercise of free speech, either by prosecution, or by utilising the undoubted chilling effect of a threat of prosecution.

There are numerous examples, and some of them are enshrined in the folklore that has grown up round this subject. For example, the student arrested in a demonstration for suggesting that a police horse was “gay”; the street preacher arrested for saying that he regarded homosexuality as “sinful”; the 16 year-old boy arrested for holding up a placard that read “Scientology is a dangerous cult”; the pensioner threatened by police with arrest for putting a sign in his window that read “Religions are fairy stories for adults”; and the man arrested and charged after he growled at a dog, even though the dog owner did not wish to prosecute. There was no mention of what the dog wanted. There were the animal rights activists who were threatened with police action useless they removed little models of seals from public view; seals that had been red-painted to represent blood. The list goes on and on, and I will not weary your Lordships with more examples.

Whose fault is it? Who should we blame? Obviously, on occasions the police are to blame. They have not exercised always the degree of common sense and discretion that would properly have resulted in a blind eye being turned to the conduct in question. Often, however, the police have been manipulated by those whose tactic has been to complain to the police on the spot and insist on police intervention, with the express or implied threat of a complaint against them unless action is taken. A now often risk-averse police service, and sometimes risk-averse prosecutors as well, have found it safer to mount a prosecution and leave the courts to adjudicate.

If change is in the air—the change that is projected into Amendment 119—how much support is there for it? I remember the Committee stage of the Counter-Terrorism Bill in 2008 when I tabled the amendment to prevent the then Government from extending the limit on pre-charge detention of terror suspects from 28 days to 42 days. As with this debate about freedom of speech, that issue was concerned with a major constitutional freedom. As with this issue today, there was a long run into the debate. But in 2008, opinions were divided. I was confronted then with all the alternative arguments: in person, in your Lordships’ House and outside, by letter and e-mail. There were debates on the radio, on television and in the press. There were arguments for and against, before the amendment was carried with a majority of 191.

But what a contrast that was with the current situation. With only one exception—I will refer to that later—I have not heard a word in argument for the retention of “insulting” in Section 5. There have been no personal approaches to me, either here or outside; no letters or e-mails; no telephone calls. Every comment in the media is supportive. I understand from colleagues in the House that they have been the recipients of a flood—or is it a blizzard?—of letters from people outside in all walks of life supporting the amendment. There appears on that basis to be little or no opposition. I wait with interest to see what is voiced tonight.

And look at the support. The noble Lord, Lord Macdonald of River Glaven, until recently the Director of Public Prosecutions, has signed the amendment and written a detailed opinion that I have circulated individually to Members of your Lordships’ House. It gives a brilliant resumé of the substantial legal arguments supporting this change. The noble Baroness, Lady Kennedy of The Shaws, an eminent QC and chairman of Justice, and the noble and learned Lord, Lord Mackay of Clashfern, one of the most respected Lord Chancellors of recent years, have also signed the amendment. I am very grateful to all three for their interest and support.

But there is much more, and from individuals or organisations that do not always work harmoniously one with the other. The National Secular Society and the Christian Institute are often at odds, but here they stand shoulder to shoulder supporting the amendment. I should like to record my warm thanks to the staff of the Christian Institute for the administrative help that they have given me prior to this debate. There are also the Peter Tatchell Foundation; the Bow Group; the Freedom Association; the Equality and Human Rights Commission; and the Joint Committee on Human Rights, which reported as recently as 20 November, saying:

“We understand the sensitivities with certain communities on this issue, but nonetheless we support an amendment to the Bill which reduces the scope of s. 5 Public Order Act … on the basis that criminalising insulting words or behaviour constitutes a disproportionate interference with freedom of expression”.

Justice fully supports the amendment, writing:

“It is essential for the progress of society that we do not ossify public views by censoring debate on matters of current public controversy”.

Liberty would scrap the whole of Section 5, not just one word; but it has pledged wholehearted support, saying:

“The amendment would herald a very significant victory for freedom of expression”.

I will not go on; there are other organisations, and perhaps they will forgive me for not adding to this very long list and taking time tonight.

Where do the police stand in all of this—for it is front-line officers who are so often caught up in the practical application of these laws? The Association of Chief Police Officers has declared that it is not opposed to the change. Only the Police Federation expressed reservations; it is the one organisation that I know has doubts about this. The Police Federation fears that the amendment would reduce the powers of police in dealing with disturbances on the street that were low- level but nevertheless troublesome. I suggest that those fears are misplaced. Most of us know that the federation is feeling bruised at the moment. Change is not at the top of its agenda. But it might well take heart from the letter that the current DPP, Keir Starmer QC, wrote to me only last week, in which he said:

“The issue has been the subject of consultations by the Home Office in both 2009 and 2011. On both occasions, the CPS responded confirming that we are not in favour of a legislative amendment to remove the word ‘insulting’ from section 5. However, having now considered the case law in greater depth, we are unable to identify a case in which the alleged behaviour leading to a conviction could not properly have been characterised as ‘abusive’ as well as ‘insulting’. I therefore agree that the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions”.

That is a very significant message indeed, and from a very significant player. As noble Lords will readily appreciate, we now have the current DPP and his predecessor both saying that the amendment can and should be carried.

This amendment, if carried, would not leave a hole in the law. Section 5 in its curtailed form would still allow prosecution for “threatening or abusive behaviour”, and there are tougher and more targeted laws, such as incitement to racial hatred, and a range of aggravated offences where hostility to the group to which the individual belongs is taken into account. Along with general laws, such as public nuisance and breach of the peace, these give the police all the powers they need to protect minority groups. It is minority groups that the law needs to look at particularly, and they would not be left out. The “abusive” limb of Section 5 covers most, if not all, genuine cases of public disorder. I will not go into the judgment in Southard v DPP, but one could find that explored there in some detail. Any repeated harassment of an individual is caught by the Protection from Harassment Act while those who, for example, burn poppies on Remembrance Sunday would be caught by Section 4A of the Public Order Act, which outlaws intentional harassment, alarm or distress.

Having tried to deal with a brief resumé of how we are where we are, looked at the abuse of Section 5 and examined some of the relevant legal provisions, I have to ask: is there any reason why this amendment should not have a clear run up the final straight to the finishing tape? Almost inevitably, as happens in life, one problem remains—a fly of fairly considerable proportions in this particular jar of ointment—and I have to say that it concerns the Home Office. The Home Office launched a public consultation on 13 October last year that sought views on three issues. Two of those are of no interest in this debate today, but one examined the possibility of removing “insulting” from Section 5. I think, though without proof, that that is the consultation that the DPP referred to before he changed his view. That consultation closed on 13 January this year. As noble Lords will know, the guidance is that the Government should respond to a public consultation within three months—that is to say, in this case, some time in April this year. To date, we have not heard a word.

At Second Reading of the Protection of Freedoms Bill in November 2011, and again on the fourth day of the debate on the Queen’s Speech in May this year, I declared that, but for the consultation period, I would have tabled an amendment to delete “insulting” from Section 5. In winding-up that latter debate, the Minister asked for patience. On 4 July this year, when the noble Lord, Lord Mawhinney, raised the issue again, the Minister again requested that we remain patient. Still there is silence. It is now over 14 months since the consultation was launched, over 10 months since it closed and over five months since the Minister asked for a little more time to consider the matter. What is going on? Is it procrastination, prevarication or bureaucratic incompetence? I do not know but, whatever the answer, I suggest very strongly that we should not and cannot wait any longer.

I opened this debate with a quotation, and I finish with another. Echoing the judgment of the European Court of Human Rights in Handyside v UK, Lord Justice Sedley, when he allowed the appeal of a street preacher for an offence under Section 5 in Redmond-Bate v DPP, said:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”.

In short, the removal of “insulting” from Section 5 will ensure that where words are not abusive and, importantly, where there does not exist any evidence of intent to harass, alarm or cause distress, nor any likelihood of fear of violence or actual violence, then those words will not be illegal, even though they may insult. You do not have to agree with the sentiments expressed—only with the right of the proposer to voice them in benign circumstances. You can be reassured that the remainder of the criminal law in this area will continue to protect all groups and individuals who are intentionally insulted.

I put it one last way. To oppose this amendment is to support and to play into the hands of those whose sole aim is to suppress views with which they do not agree, come what may. I ask this House to recognise the current abuse of the criminal process, to reflect on the need to protect basic freedoms under the law, to remember that freedom of speech is one of the most important civil liberties—some would argue, the most important civil liberty—and to support the amendment. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. I will not take long because I hope that we will move to a vote very quickly. I am the chair of Justice, the legal organisation, and I can say with confidence that that organisation, which represents the legal profession up and down the country, is wholehearted in its support of this amendment. The stories that the noble Lord, Lord Dear, has told of ridiculous cases being brought before the courts could be replicated in robing rooms and courtrooms throughout the land, and I am afraid that it really is time that we put a stop to this.

A very famous American judge once spoke about the importance of the marketplace of ideas, which means listening to views that sometimes one does not like, sometimes, as Lord Justice Sedley said, are irritating, sometimes are provocative, sometimes are heretical and sometimes might upset us. However, that is what democracy is all about, and we should take pride in it.

I wholeheartedly support the noble Lord, Lord Dear, in this amendment, and I hope that all noble Lords who are here will see the importance of this. Unfortunately, the thin-skinned are not serving our democracy well by seeking to have these cases brought. I pity the police who are put into this difficult position, and I am glad to see that both the former Director of Public Prosecutions and the current one recognise that the law is there to deal with truly offensive behaviour or that would lead to further crime and disorder. I hope that noble Lords will support the amendment.

[Lord Mackay of Clashfern]

My Lords, as the third string, it seems to me that freedom of expression is an extremely important part of our democratic heritage, and it has not been won without quite important sacrifices by many people who have gone before us. It is a criterion for seeing whether democracy is supported that freedom of speech is supported strongly.

Some matters connected with freedom of speech are very topical at present with regard to the public press, but the notion that freedom of speech can be tampered with without serious consequences to our democracy is a considerable mistake. The amendment would be an important step in clearing our situation regarding freedom of speech. There is no menace in an insult. Abusive or threatening language is different. It is menacing to people and, rightly, is subject to criminal law. An insult, though, is in no way threatening, except as a challenge to what I am saying. Surely we have all had one or two challenges to what we say, and we are usually the better for it, sometimes by strengthening our argument in favour of what we are saying and sometimes leading to wise reconsideration and withdrawal. I suppose that all of us have had such experiences.

I support very strongly the amendment moved by the noble Lord, Lord Dear, and I hope that if the Government are going to finish their consultation, they will do so in the right direction. It seems to me that they have taken a long time. Often that is necessary in order to clear up some issues, but I am sure my noble friend will explain tonight exactly what the position is in relation to this consultation. Why has the result not been given within the timescale that the Government themselves set?

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.

[Baroness Kennedy of The Shaws]

Perhaps I may ask my noble friend whether the word “abusive” would deal with that. The law is there to deal with it. The example that my noble friend has just given could be met with the law in the way being proposed by this amendment.

[Baroness Smith of Basildon]

My Lords, it may well be. The answer is that I do not know. There has to be a proper examination of the evidence. If I was absolutely clear, and if we could be absolutely confident that this poor woman, Miss Williams, who was abused on a train, would be covered without the word “insulting”, I would move forward on this. I think that we could accept that. Until we have evidence from the Government that allows us to be absolutely clear that we are protecting people who are subject to abuse and insult—

Crime and Courts Bill [HL]

Baroness Kennedy of Shaws Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I wish to address a number of proposals but I start by saying that I heartily agree with noble Lords who have spoken about the importance of our seeking to find alternatives to prison. The increase in prison numbers is horrifying. In this period of increasing youth unemployment, it is alarming to think of the risk of young people offending in greater numbers. More and more of them may find themselves in prison, their lives ruined. That should be a source of great concern to us all. Therefore, I hope that this time we will pursue alternatives to prison with seriousness and I hope that I shall be able to vote in support of such changes.

I want to speak, first, about the creation of the new National Crime Agency to deal with serious crime. I know that there are concerns about this reform and I have reservations myself, but in general I am convinced that globalisation is presenting us with such serious challenges to our national responses to crime that we should be willing to re-examine our present arrangements and be prepared to consider reform.

The very developments that make legitimate markets work—the ease of travel, the electronic transfer of money, the internet and the mobile phone—are all just as effective in developing black markets. In my work in the courts, I see at close quarters the trade in drugs and firearms, the trade in human beings for labour or sexual exploitation, the trade in human organs, which has been all over the newspapers today, and—I was involved in such a case last year—even the trade in babies. Such high-level crime, whether it is terrorism or just traditional organised crime, involves high rewards for the criminals—the money involved is huge. In years to come, we will undoubtedly see an increase in cybercrime.

For the most part, this sort of crime is very difficult to police but it affects all our lives, with greater quantities of drugs on the streets, an increase in gun crime and a pernicious growth in the sex industry. Policing these activities requires high levels of expertise and collaboration. I saw that first hand last year when I chaired an inquiry in Scotland into human trafficking. What became very clear to me was how necessary it is to have real collaboration and systemic responses to this kind of organised crime. Human trafficking, for example, often falls foul of agencies not knowing who takes the lead. It is a crime and so should be led by the police. It should not be fudged as something that might receive an initial investigation by the border agency.

Therefore, I welcome the possibility of a more focused and strategic response, particularly to human trafficking, but to other areas of crime too. However, there are problems. If you increase the centralisation of policing of serious crime in this way, there has to be much stronger oversight than there currently seems to be in the Bill. I am also very concerned that the freedom of information exemption will be continued here and I think that that should be revisited. It is important that the public know about the workings of such an agency when it is going to interfere in the privacy of so many lives.

I turn to the subject of court reforms. I welcome the idea of demystifying the courts and have written about it for years—ever since the late 1970s. It is important that the public know what goes on in courts. I remember that in the 1980s the drama series “Crown Court” did much to awaken public understanding of the processes and the issues that arose. I have no argument with the plan to televise the hearing of appeals in the Supreme Court or the Court of Appeal so that the public can watch and listen to the arguments being presented and understand why the judges make certain decisions. However, let us be very clear that that is not what the television companies are interested in. They are interested in new products and new ways of giving us pictures. They are interested in new titillation from “Big Brother” to “X Factor”.

We know what interests most television companies and I am afraid that some of it feeds the less attractive aspects of the human condition. The television companies want criminals. They do not want to watch judges giving judgments in the commercial courts. They want criminals; they want murder and mayhem; they want rape and carnage; and they want pretty victims and nasty, thuggish offenders. They also want celebrities being dragged before the courts. This is not about transparency; it is about voyeurism. Although it may be starting in a small way, I have great concerns about where this is going to lead. Basically, television companies—I have heard it being discussed—want criminal cases and they want to be in the courtroom. Reporting criminal cases is currently very disappointing for television newsmen. Where are the pictures? That is one of the questions that television people always ask. They do not like talking heads. Talking heads are a bore and that is why it is very difficult to cover trials. You get only snatched shots of witnesses leaving the Old Bailey or those cartoon-like drawings of defendants in the dock that look nothing like the people concerned. I can tell your Lordships that—I have represented them. Sometimes I appear in those drawings.

The television companies are desperate to get into the courtroom. It will start with just having the judge giving judgment, but they are not interested in the men in wigs waxing long and impenetrably about law. That is not what they want to see. They want the sensational, the salacious and the grotesque. So I am afraid that this is one of those rare occasions when I am going to disagree with our former Lord Chancellor, the noble and learned Lord, Lord Mackay, because I do not think that this is a healthy development. I hope that there is no rush to cover judges reading out their sentencing remarks. Letting television cameras into courts carries serious risks and, although this is starting at a low level with the higher courts, the potential for drift is huge and the consequences for justice are very serious.

Perhaps I may explain that the camera does not replicate the public gallery. People say, “But this is just making the public gallery bigger”. It is not. The camera chooses what to look at. It edits as it chooses. Indeed, at the moment the camera is looking at me. It is not looking at the responses of other noble Lords to what I am saying. If you sit in the public gallery of a court, you take in not just what the witness says but what the judge says and you watch the defendant’s responses and other things that happen in the courtroom. That tells you much more than you will ever know from watching snatches of the proceedings on television, and snatches are what they will be. Some states in the United States had to introduce something called gavel-to-gavel coverage because lawyers and people concerned with justice complained that, if you did not show the whole process, people would think that they had seen the trial but they would not understand whole areas of evidence that were never placed before the public. Unfortunately, “News at Ten” will not be interested in putting it all in front of you; it will put in front of you what is most dramatic. The public will think that they have seen the trial because they will have seen bits of it and then they will think that the jury got it all wrong. That will undermine confidence in the system.

Of course, we now have other forms of technology. Once shown on television, cases will be uploaded on YouTube and downloaded on to people’s phones. We will have people playing and replaying cases. Do you think that jurors are going to resist that when we do not have juries staying in hotels as they do in America? Of course juries are reminded not to look at these things, but do you really think that they will not? Do you think that they will not do it in the company of their families at home, so that there is then another jury deciding what it thinks of the evidence? The risks are horrifying. I think that new technology will make it impossible to have a fair trial and, in the end, that will mean that the whole question of jury trial is put in jeopardy.

There is also an issue for judges. In this country, judges enjoy a level of anonymity and unrecognisability. However, that will be lost. You can be sure that comment will be made about the sentences not being strong enough or tough enough. Then judges will be vilified and criticised and they will start to become defensive because they will know that the cameras will keep coming back to their particular court. When Cherie Booth—the wife of a former Prime Minister—sits, will people want the cameras to be in court to see whether her judgments come up to snuff? These may look like advances and transparency to all of you, but I am afraid that it looks like a very serious challenge to justice to me.

I welcome the efforts on diversity. All my professional life I have been arguing about the need for more women in the courts and on the Bench, but I am concerned about a number of things. I am concerned that the issue of merit is not examined in the Bill. I would like to see a new statutory merit test because merit is not a value-free zone; it is an area where many of the judgments that are made are made from a very narrow perspective. As the Chief Justice of Canada has reminded us,

“human beings have a tendency to see merit only in those who exhibit the same qualities that they possess”.

I am afraid that in the recent appointments of two men to the Supreme Court—there is still only one woman in that court—25 consultees were asked for their views and 24 of them were men. The outcome is affected if the gatekeepers are all from one perspective. Currently the emphasis is on one relentlessly individualised understanding of merit and it is too narrow. Instead, the collective competence of the court should be a central feature of appointment, allowing for the correction of deficits in terms of diversity but also in terms of specialist experience, such as people who have experience of trying cases involving children or people who have experience beyond the commercial. Candidates should, in the first instance, fulfil the criteria of intellectual ability and professional experience in practice, but then we might look to some of the other factors that would enrich our courts.

The Bill has much to commend it but much that needs to be looked at again. I hope that in Committee we shall make it very much better.

[Lord Mackay of Clashfern]

Did the noble Baroness see the television recording of the sentencing remarks in a recent murder trial in Scotland?

[Baroness Kennedy of The Shaws]

I did, but I think that one case can often make bad law. Of course, an individual judge giving a judgment in a case can make people think that that was interesting and reasonable. However, you can be sure that, as we cover all cases more regularly, certain judges will be considered too lenient and they will be pursued. We shall find that the hunger for punishment will be fed by certain television stations. I am concerned about where this will go, so I hope that a good deal of caution will be shown before we go down this road.

Terrorism Prevention and Investigation Measures Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 15th November 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I, too, support this amendment. I want to thank the most reverend Primate for his remarks. It would be very easy for this to become a debate in which lawyers hold the floor, but it should not be, because this is so fundamental to who we are and what our system is here in Britain. We are talking about the rule of law and about liberty and the protections we provide for it.

I wanted to pick up what my noble friend Lady Hayman said when she answered the question: what is so special about judges? Her answer was that they are not politicians. It is more than that. Our judiciary is independent. We spend time—I certainly do—speaking to lawyers and judges in other jurisdictions about what the meaning of an independent judiciary really is, and how it protects our politics. As the most reverend Primate has said, it is a protection for the politicians and for our polity that we hand over issues to do with something as precious as liberty to judges—even in these exceptional circumstances—because that way we are adding weight to the importance of liberty’s meaning in all of our lives.

[Lord Phillips of Sudbury]

My Lords, I support strongly the last point made by the noble Lord, Lord Pannick, which has been indirectly referred to by the noble Baronesses, Lady Kennedy and Lady Hayman, and by the noble Lord, Lord Macdonald of River Glaven. I hope that my noble friend will take full account of the political importance of this group of amendments. The psychology of extremism feeds on a sense of unfairness and oppression. The law as it stands, and indeed as it is improved in the Bill, will inadvertently provide to those who already feel hard done by, or the subject of extreme unfairness, a spur to yet further, potentially terrorist, activities. That will be the case if an important decision of this nature— which has, as other noble Lords have said, extreme repercussions—is not the decision of an independent judge but that of a politician. However good the politician is, the person who may be converted to extremism will view that politician as an agent of politics and not as an agent of justice. For that reason, among many others, I urge my noble friend to adopt these amendments.

--- Later in debate ---

[Lord Macdonald of River Glaven]

My Lords, Clause 4 of the Bill indicates that the finding which will be made in relation to a TPIM is that an individual has been involved in,

“the commission, preparation or instigation of acts of terrorism”;

or in,

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

or in,

“conduct which gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so”;

or in,

“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in”,

such conduct.

This is a very grave finding. As I suggested earlier, it is a finding which justifies a standard of proof on the balance of probabilities rather than reasonable belief. I support the amendment for the reasons that have already been set out.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support the amendment. It was always a great source of regret and sorrow to me that during Labour’s years in government we saw an erosion of the standards of proof on many different fronts. I remember getting support from the Conservative Benches and agreement that erosions of the standard of proof were taking place. Therefore, this rather strange volte-face by the coalition Government has come as a surprise to me. I want the Government to think again about this erosion of the standard of proof. As noble Lords who have already spoken have said, the consequences are serious. This House should not contemplate having anything less than the balance of probabilities.

[Lord Judd]

My Lords, I, too, support the amendment. Inevitably my argument relates back to what I said on a previous amendment, but it is absolutely crucial that we should have the maximum possible support across all communities for what is being done. If the Secretary of State is to have these great powers, which the House has reaffirmed today, then we must fall over backwards to ensure that justice is nevertheless seen to be done, and not just done. In that sense, it must be very convincing indeed when the Secretary of State acts. The amendment is wise and sensible. The absence of the provisions in the amendment again undermines the battle for the hearts and minds of the impressionable young.

--- Later in debate ---

[Lord Macdonald of River Glaven]

My Lords, I support the amendment for reasons already advanced. For my part, I have no desire at all to see this sort of scheme become a normal and conventional part of our legal arrangements; it is not, for all the reasons that noble Lords have repeatedly advanced this afternoon. It is an exceptional scheme, and it is important that it continues to be seen as such. The amendment lays it bare; it mandates appropriate and continuing scrutiny, engaging the regular attention of this House and providing reassurance that these measures will not continue for a moment longer than they are required or necessary. A strong part of providing that reassurance will be annual scrutiny by this House of the continued necessity for such a scheme as is undoubtedly going to pass into law.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support the amendment. I am not going to take up the time of the House, because I think that the arguments are simple. It is about the exceptional nature of this shift, which requires us to keep it under scrutiny. I remember having conversations with colleagues when we were discussing control orders, and hearing repeated over and over again in this House how important it was that liberty is maintained and that requires eternal vigilance. That is why when you depart from the norms that are in our system you have to have them under review as often as yearly.

I know that the Minister speaks passionately about liberty—I have heard him do so. I remind him that that vigilance requires that we keep this constantly in front of us, and I think that once a year is not asking too much.

Terrorism Prevention and Investigation Measures Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 1st November 2011 Lords Chamber

[Lord Pannick]

My Lords, I, too, support the amendment. I am rather more optimistic that it will do a great deal of good. I agree with what has been said by the noble Lord, Lord Rosser, about the need for an annual review because of the exceptional nature of these powers, and because of the need for Parliament to have the opportunity to consider such matters annually. But there is a further factor. An annual review will surely impose an important discipline on the Government, and this is an area where we inevitably need to trust the Government. It will require Ministers periodically to consider the need for these measures, what they can say to justify them in parliamentary debates and whether or not these measures need an amendment. This is an important discipline, particularly in a context where the factual circumstances that are said to justify these exceptional measures are not going to remain static for as long as the next five years.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. Unlike the noble and learned Lord, Lord Lloyd, I do not think it is pointless. We should always remind ourselves that emergency measures have a way of seeping into the legal system as a whole. We have learned that over time. Often, things that are introduced as emergency measures end up remaining on the statute book for far too long. The fact that we come together and annually review a matter—even if we do not manage to persuade the Government—does mean that the matter is before us, and we are still talking about something that is being used as an exception to the rule. I therefore urge those who are listening to see why this is important, and that we do have the annual review that we have always had in the past.

[Lord Faulks]

My Lords, these provisions followed a lengthy counterterrorism review and represent the views of the Government as to where the line should be drawn between the necessary powers, by way of TPIMs, and the liberty of the individual. This legislation has been through the other place and is going through your Lordships’ House in a thoroughly orthodox way, and the provisions are being carefully scrutinised. TPIMs contain a considerable number of safeguards, which have already been discussed in Committee, and they reflect a considered compromise between the various arguments. The Bill does not represent a response to the immediate crisis, as the 2005 position did, and has not gone through Parliament by way of accelerated procedures; it represents the result of lessons learnt.

The provisions can be repealed by an order-making power or in the way that any other legislation is repealed. It is tempting with extraordinary powers—and I readily concede that they are extraordinary powers—to suggest that they should be under more or less constant scrutiny. But where the Bill represents a considered response, five years is an appropriate time in which Parliament and the Government can consider this particular take on a particularly difficult situation. At that juncture, the Government and Parliament can think again. For the moment, as the noble and learned Lord, Lord Lloyd suggested, squabbling every year about this would not improve matters, and we should rest with the provisions as they are.

Terrorism Prevention and Investigation Measures Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 19th October 2011 Lords Chamber

[Baroness Hamwee]

I absolutely support what the noble Lord, Lord Pannick, said. My amendments to both his amendments were partly in response to an earlier draft, which I think he changed before tabling them. However, the point remains the same: to tease out whether the words “if possible” are objective or subjective to the individual. I am not sure what “if possible” means in the context. I would certainly not want anything that the noble Lord has included to detract from the thrust of his important amendments and argument. I beg to move.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendments in the name of the noble Lord, Lord Pannick. I disclose that I act from time to time in what have been control order cases and may be called on to act in future such cases. I reinforce the importance of having disclosure of the essence of the case. The reason for that is that from time to time I have seen that, when disclosure of the essence of the case takes place, it is possible to show that the inferences drawn from certain behaviour are not appropriate.

I give an example. The case involved a student living in a house with other students. We are always concerned that association can be an unfair way to judge someone. An assumption was made and disclosed in the essence of the case against him that a conspiratorial meeting took place at a particular time. It was possible for us to show that he must have been in his room using his computer because, during the period of the meeting, he was in direct contact with the department with which he was studying at university, drawing down the homework that he was required to do. Not only was the university able to confirm that but his computer, which was seized, showed that the timing coincided with when some others were involved in the meeting, when he was in his room studying. Just that allowed someone to show that an inference being drawn was incorrect.

Given that we are putting together a system which is in many ways a source of concern with regard to liberty, it is really important that opportunities are there for people to show that their actions are not the ones that the state is imagining. We must, in drawing up new proposals—some of which I am not completely happy with—draw on the decisions made by judges under the control order regime.

Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011

Baroness Kennedy of Shaws Excerpts

Tuesday 8th March 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as the independent overseer of the review of counterterrorism and security powers. Like the Joint Committee on Human Rights in its recently published report, I strongly welcome the Government’s conclusion that the current control order regime can and should be repealed, consistent with public safety. It is obviously essential that it is replaced with something that is very different in character and not simply a pale imitation. We shall have to look closely at the legislation that comes forward to ensure that that is not what the Government have in mind. The review has clearly shown that the present regime is inefficient, grants excessive power to the Government, and undermines traditional British norms and respect for the rule of law. This may not be surprising. It was introduced by accident, following a series of court judgments adverse to the last Government. It has been a bad mistake.

I also strongly welcome the Government’s renewed and strengthened commitment, expressed in their response to the review, to the absolute priority of criminal prosecution. Where people are involved in terrorism they must be detected with all the considerable power at the disposal of the state, then prosecuted and locked up. It is not just public confidence that demands this but also our traditional common-law attachment to the supremacy of due process in criminal justice and our courts. The fact is that the evidence gathered by the review has made it clear that the present control order regime acts as a fundamental impediment to prosecution. This is because the restrictions placed upon controlees forbid the very contact and activity that, under proper surveillance and investigation, lead to evidence fit for prosecution. It is also because far too many controlees are simply warehoused under the supervision of the security services, beyond the scrutiny of criminal investigation, and therefore beyond any real possibility of prosecution.

For good reasons, the instincts of the security services are protective rather than prosecutorial in nature but this practice, and the Security Service’s primacy within it, means that some serious terrorist activity remains completely unpunished by criminal law. This is a serious and continuing failure of public policy. Any new scheme introduced by the Government must not replicate this failure. To give reality to the primacy of prosecution, which is the Government’s stated aim, it should clearly become an intrinsic part of any new regime that restrictions placed upon individuals should be linked to a continuing criminal investigation. After all, if the Home Secretary, under the new regime, is to go to the High Court to assert her belief that an individual is involved in acts of terrorism so that she may obtain an order placing restrictions upon that person, it would be quite absurd for there to be no active criminal investigation into the individual in question attendant upon the Home Secretary’s application. Yet that is the position that we are in at the moment.

Of course, if there were always such an investigation in progress, court-approved restrictions mandated for the duration of that investigation, up to a maximum period of two years, would become much more constitutionally acceptable—a form of pre-charge bail. I have no doubt that such a reform would garner broad support for the Government’s new regime, including among those most bitterly critical of the current arrangements. This reform would encourage evidence gathering and therefore increase the likelihood of prosecution. It would bring the new regime much closer to criminal justice, which is an obvious good in itself with all the protections that criminal justice implies for suspects. The Government should urgently reconsider their preliminary view on this issue which, frankly, has been hostile.

Again frankly, any Security Service opposition to intense police activity around controlees should not be a trump card. The public interest is wider than the instincts of the Security Service. In fact, the trump card should always be found in locking up those people who want to wreak violence upon our communities and putting them in prison cells for long, long years. This is the true deterrent and it is also the process that truly protects the public in a way that control orders never have.

There is a separate issue. A further conclusion of the review was that relocation—the practice under which people were forced to move to other parts of the country away from home, family and friends—should be abolished, and that long curfews should go. These were among the most bitterly resented aspects of the old regime and for good reason. They were also the most offensive to our traditional norms, imposed as they were without prosecution let alone conviction, and without the controlees being told any more than the mere gist of the allegations against them. Whoever would have thought that in Britain we would have a form of internal exile without prosecution or conviction?

The Government have now agreed that these provisions are excessive, disproportionate and, unnecessary—and I would add offensive. We do not need them, as the Government have now determined. They intend to abolish relocation and long curfews under their new regime. In those circumstances, they should do so now. How can it be right for this House to be invited to extend powers that the Government themselves have conceded are wrong in principle and excessive in practice, particularly when those powers impact so vividly upon civil liberties? I invite my noble friend to consider a way to proceed that does not include renewal of these quite excessive and, as we now know, unnecessary intrusions. Those subjected to them should not have to labour under these oppressive measures any longer. There can be no conceivable public interest in obliging them to do so when the measures themselves are serving no useful purpose.

Finally, it will be critical for this House and the other place to examine with great care the legislative proposals that come forward. It is always tempting for the bad old stuff to slip back into a piece of draft legislation. We must not end up in the position of approving a system later this year or early next year which is a form, as some people have put it, of “control order light”. We need real reform in this area. If there are to be restrictions, they must be coterminous with criminal investigation. There must be no restrictions which destroy the ability of the state to obtain evidence against people who might have been involved in terrorism, which is precisely the effect of the present regime. It has failed and must stop.

[Baroness Kennedy of The Shaws]

My Lords, I will be brief. First, I suspect I am one of few people in the House who has been involved in some of these cases in the courts. I have seen them at close quarters.

Many noble Lords will also remember that I was one of those on the Labour Benches who strongly opposed the Labour Government introducing control orders. I opposed them then and ever since. I welcomed the fact that noble Lords on the other side of the House, whose faces are familiar, all went through the Lobbies with me opposing control orders. Now they are sitting in government and I want to remind them of the principled stand that they all took on control orders. It is easy, once in government, to hear poured into their ears the position taken by the security services that somehow this is the only way forward. With regard to the issue of dealing with persons suspected of links with terrorism where it would be difficult to bring them to trial, I have always advocated that surveillance, the use of intercept and so on can be done, but without interfering with liberty in the excessive way that control orders have meant. I am saddened and disappointed that the siren voices of the security services have persuaded the Government that something not very different from control orders should be the way forward. I am sure that I will be one of the people who take part in the debates when the legislation is presented to this House, and I will rigorously test some of the suggestions that have been made.

I strongly support what has been said by the noble and learned Lord, Lord Lloyd, and indeed the noble Lord, Lord Macdonald: given the principled position that the Government are going to do away with control orders, and even if the position is that something else will come in of a lesser order but somewhat similar, it is quite wrong at this moment to keep the thing that they have criticised for so long with regard to the eight people currently subject to the level of suspicion that we have heard about. It cannot be right to continue that until the end of this year. At the very least, the Government should be reducing the constraints upon liberty to the standard that they are intending to introduce, and then that can be revisited in December. However, it cannot be right for them to continue with control orders when they so bitterly opposed their existence once they had been introduced by new Labour in government. I ask that, in the spirit not just of decency but of appropriateness, the cases that we have spoken about and the noble and learned Lord, Lord Lloyd, mentioned be revisited.

I reiterate what my noble friend Lord Judd has said: one of the jewels in our crown, one of the great limbs of our democracy, is the way in which we interpret the rule of law. I am a proud champion of the common law. We have always believed that due process was vital before we in any way encroached upon the liberty of human beings. That is a proud tradition here and it is a sort of ceding to the terrorists if you abandon those values, which are so precious in our society. I strongly urge that we do not go down the road of introducing something similar, because it is a poison in the system. It is a way of saying that it was not just a temporary measure; somehow we have bought into this idea, and an alternative to the things that we have always believed in can now be introduced. I urge that we think again about that.

I was interested to hear that the noble Lord, Lord Macdonald, said that there are alternatives, and I hope that in the months to come the Government will look again at what they are intending to do.

[Baroness Afshar]

My Lords, I add my thanks for the decision by the Minister to abandon forced relocation. However, I have been given to understand by Liberty that this weekend a young man with a young family was forcibly sent off. I want to highlight the law of unintended consequences: a young family is left behind that will be deprived of rights that this very same young man is going to have in the very near future. That means that a child will be raised apart from the care of the father of the household, but that child has committed no crime. My understanding was that the House has always agreed that the interests of children should be put first. It surprises me that at this stage we still are forcibly sending off young people who may or may not be guilty and punishing their family in the process.

--- Later in debate ---

[Baroness Neville-Jones]

As I said, I am not going to make that promise. I was about to add a sentence when the noble Lord rose. We will take this under advisement and see whether we can give some kind of summary, but if the noble Lord does not mind, I do not want to give a totally definitive answer to that point this evening.

I was asked a number of detailed points and I shall try, without detaining the House for too long, to go through some of them. Right at the beginning, the noble and learned Lord, Lord Lloyd, asked a number of questions which I think bear on points made subsequently in debate. The implication of his remarks was: would we honour seriously what we have said about the importance of continuing to seek prosecutions? I have three things to say about that. One is that the CORG which he mentioned will conduct serious work. I think that it has always been a serious body but the Government are going to make absolutely certain that the conduct of the CORG—the review body that keeps these cases under continuous and pretty close scrutiny—is serious. We have, I hope, created a situation in which there will be greater possibilities for prosecution. I stress to the House that I think it is only fair to say that the primary purpose of these measures is still protective. Nevertheless, within the scope that is offered, we will certainly be looking at the possibility of continuing and bringing prosecutions. Indeed, the operation of the TPIMs themselves may allow that to happen.

I was also asked why, if we believe that the control orders are imperfect—as, indeed, I said myself—we do not abolish them straightaway. I was asked whether it would not be right to do just that. I remind the House of the condition which is very important to our ability to move to a looser regime, and that is the surveillance that needs to be put in place in order to provide the public with the necessary security. That surveillance does not exist at the moment. Individuals have to be recruited; people have to be trained; and we have to have extra capacity and capability in that area, which we do not have at the moment. I do not think it is reasonable to say that you should be able to abolish the existing regime for the individuals who are currently under control orders in the absence of the necessary conditions for a new regime. Having said that, clearly the current control orders come up for regular review. We shall be reviewing them and of course we will be looking at individuals’ cases in the light of their situations. As I have said, there is clearly a transition to be undertaken. I do not think that I can go further than that at the moment. I understand perfectly well the point that has been made but I hope that noble Lords will also understand the constraints that we are under in moving quickly from one regime to another.

[Baroness Kennedy of The Shaws]

My Lords, perhaps I can deal with the issue of moving people to places like Leicester or up to Norfolk and so on. We have decided that that is abhorrent and that it will not be sought by the Home Secretary. Therefore, can we not now bring back from exile the people who have been put on those orders?

[Baroness Neville-Jones]

When the circumstances are in place and we have the necessary surveillance and protection for the public, we will be able to do so. First we must put in place the conditions that will enable us to operate the new regime.

The noble Lord, Lord Judd, is absolutely right to say, as I should have said, that the Government are extremely pleased that the Joint Committee on Human Rights has welcomed the change. He will also have observed that I did not miss the fact that there were some qualifications in the views expressed by the committee. We shall certainly take those seriously. In particular, he mentioned the unhappiness about the conditions under which special advocates have to operate. In the report there are one or two instances of the special advocates’ conditions of work being eased. It is a big issue and it goes wider than control orders. That will be taken up and examined, and part of the Green Paper that the Government are to bring forward will be devoted to the use of special advocates and the conditions under which they should be able to work for their clients.

I would like to reiterate my thanks to the noble Lord, Lord Macdonald. He did us the honour of saying that he felt that the process had been an honest and thorough one. I am extremely grateful for that, as it is valuable to have that endorsement. I have to be honest and say that there is some light between us on the balance to be struck between protection and prosecution. That is an issue that we shall want to explore further in debate. We entirely agree with him about the supremacy of due process and I do not deny at all that the control order regime inhibits prosecution. We are trying to strike a balance that will enable us to have greater emphasis on the prosecution side of things. However, I cannot conceal from the House that the protective element in the TPIMs is a primary objective.

I believe that I have covered most points. One noble Lord mentioned the role of the reviewer. We now have a new statutory reviewer and, having met him, I have total confidence that he will do an extremely thorough and careful job. I think that he will be a safeguard against the danger to which the noble Lord, Lord Macdonald, pointed—the difference that turns out to be not a difference but a continuation of the existing situation. I do not believe that that is the Government’s intention or the effect of implementation, but there will be that safeguard. He will also report on individual cases. It is right that we should leave that role to him; I do not want to do that role myself.

I hope that I have covered the main points raised in the debate. Perhaps not surprisingly, the noble Lord opposite tried to get me on to the effect of the police reform Bill. I remind him that the budget for counterterrorism is protected. There will be more information about the whole role of the National Crime Agency. I assure him that the national functions of the police will be just as protected as our desire to ensure that the accountability to local authorities on the part of the police and crime commissioners is also a feature of modern policing.

Given the prospect of scrutinising the new regime with the thoroughness that I know this House will wish to apply, and with the clarification that I have been able to give, I hope the House will agree that the order can be renewed, and I commend it to the House.

Sex Offenders Register

Baroness Kennedy of Shaws Excerpts

Wednesday 16th February 2011 Lords Chamber

[Baroness Neville-Jones]

It will be a proper consultation and, obviously, noble Lords and others will be free to put forward their views. On the evidence and information that will be taken into account by the police in the review, I can confirm straightaway that the MAPPA process, NOMS and those who have relevant information will be involved. It is right that NOMS has considerable experience of probationary periods, and the police will be under an obligation, which I am sure they will understand, to make the review both fair and thorough.

[Baroness Kennedy of The Shaws]

My Lords, it is deeply depressing to revisit this way of dealing with decisions made by the courts. It is familiar to those of us who are lawyers because we had to endure it under the previous Government, when tomorrow’s headlines dictated the way in which they responded to a wholly reasonable decision by the courts. In this case, the court decided that there should be an obligation to ensure that people have the right to appeal. It in no way suggested that paedophiles should be removed willy-nilly from the register.

There are occasions where someone should be able to appeal. For example, a young man in his 20s has sex with an underage girl and is put on the sex register. When he is a man in his 40s—married, with a family and holding down a job—it may seem reasonable to him that his name should be removed from the register on which it was placed for something that he did with an underage girl when he was in his early 20s. That is the kind of offence that the court envisaged when it said that there should not be a blanket situation where there can be no appeal whatever.

The reasonable response of the Government would have been to say clearly that an opportunity to appeal should be available, that it will be rarely used but that they support its existence. That is the position that the Government should have taken. I always get the feeling that there is something in the drinking water at the Home Office that makes sensible people lose their nerve and good sense when it comes to these matters.

As to the comment on the need for a Bill of Rights, how would the situation be any different if, as I have heard government Ministers say, all that is contained in the current European Convention on Human Rights would be in a British Bill of Rights, but with additional matters included? If that were the case and the Article 6 protections of due process, under which this kind of appeal, in given circumstances, is available, were included, how would it be any different? I suspect that this would be available in a British Bill of Rights, as it is now. Surely good sense should have been the response of the day.

[Baroness Neville-Jones]

The Government regard what they are doing as bringing them into compliance with their obligations under the Human Rights Act. Therefore we do not envisage that the work of the Commission—and of course the terms of reference have yet to be agreed—would be affected by what we are doing here.

The Government have put in place a review process. Sex offences are extremely difficult to make judgments about and we believe that those who are involved in their rehabilitation, NOMS and the police, who will have had the obligation to supervise their conduct in the interim, are better placed to do that than the courts. That is why we have instituted the review of the process that we have put in place. I also rely on London tap water—I find it keeps me entirely sane.

Identity Documents Bill

Baroness Kennedy of Shaws Excerpts

Monday 18th October 2010 Lords Chamber

[Lord Shipley]

My Lords, this Bill is a most welcome step by the Government. Many people have argued for many years that the introduction of ID cards and the national identity register was flawed on political, technical and financial grounds and would do very little to prevent terrorism, crime or fraud. As we have heard, a national identity register database could actually increase the risk of fraud and terrorism.

At its heart, the ID card and database proposals would, if proceeded with, change irrevocably the relationship of the state with the individual. It is one thing to have some form of personal identification during wartime, as we did 70 years ago, and quite another to create a massive national identity database for which identity cards themselves are simply a means to an end and not an end in themselves. Every swipe of the card could be recorded, as my noble friend Lord Phillips of Sudbury pointed out.

Why did the previous Government want such a database? Why did the obvious flaws not stop them? Why was the attack on individual civil liberties not seen as an issue? Why did the cost not seem to matter, given the serious structural weaknesses of the national identity register, which would have devoured far more money than the Government suggested? This Bill will stop the trend to a society in which private information becomes available on big databases that are accessible to large numbers of people, the vast majority of whom have no need of the information to which they would get access.

Never, since 2002, when the proposal for identity cards and the national identity register was first discussed, have I understood the justification for it. I cannot recall any reasoned, logical analysis of the need for it; that is because the proposal was never properly thought through. The official rationale seemed to be that the cards and the register would help in the fight against terrorism, but when terrorists are UK nationals entitled to an ID card or when they hold valid identification, as in the Madrid bombings, the case does not stand up to scrutiny.

Another ostensible reason was the need to prevent identity fraud, except that that is much more likely if you place lots of personal data in one place on one big database. Proponents of ID cards began to change the emphasis of the grounds of their arguments as the arguments were so convincingly won by those opposed, so we were told that there would be a convenience factor for young people when going to a pub or buying alcohol. As Liberty has pointed out, however, it is a very weak argument that we should construct a massive state database containing billions of biometric and other data, at a cost of several billion pounds, so that people can secure entry to a pub. Then we had the suggestion that ID cards might replace the concessionary bus pass for pensioners. Just imagine it: a multibillion pound scheme for identity cards being used to produce bus tickets.

The whole sorry exercise would have cost around £5 billion, at least—and that for a project that began life as a solution to a set of problems that were never clearly defined. Once the reasons were examined, they were found to be wanting and it became a project in search of a customer for, despite the fact that the Act has been on the statute book for over four years, only 15,000 ID cards have ever been produced. Of those 15,000, meanwhile, 3,000 were given free to airside workers. It now costs £5 million a year to run the current scheme, which is a cost of £400 per head each year. One is left with the impression that the previous Government, having finally grasped the nature of the flawed system they were creating, decided to head for the long grass under the guise of a slow start.

I am still left wondering why the previous Government believed so strongly in the value of big databases in which costs were rarely controlled and the security of data was so often not guaranteed. There are two kinds of scrutiny: first, who has access to what information; and, secondly, how secure it is from hacking or loss. As we know, there have been many major lapses in big government IT projects in recent years, and it seems pretty clear that the bigger the database, the higher the number of people who will need to access it and the weaker the security will inevitably be as a consequence. We should take note of some research undertaken by the Centre for Technology Policy Research at the London School of Economics, which tells us that,

“Despite a spend of as much as £21bn”,

a year,

“on public sector IT, it is difficult to find any compelling examples of direct productivity gains and improved public services”.

This is not just about waste on ID cards, but much more—not least the NHS database.

This Bill will stop the waste on ID cards and the national identity register, and stop the substantial erosion of civil liberties that was promoted by the previous Government. It is part of a broader rejection of intrusion by the state into people’s daily lives, for when the state acts it should be proportionate to the problem that needs resolution. The Bill will now prevent the second generation of passports, which would have added fingerprints to the facial biometric data already present on the biometric chip in UK passports. The previous Government’s plans for ID cards and a national identity register have been described by the director of Liberty as a grand folly. Well, that must be right; follies are created by people who have access to large sums of money and who have a fondness for frittering it on grand gestures. That seems to sum it all up.

[Baroness Kennedy of The Shaws]

My Lords, may I beg the indulgence of the House and be permitted to speak in the gap?

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I now see the gap and hope that I will be permitted to step into it.

I opposed the ID card policy from the outset, seeing it as an affront to fundamental liberties in this country. So I am glad that the coalition Government have acted so expeditiously to abolish the scheme. I have always made it clear that I do not have any problem about enhancing the information contained within a passport for border control purposes. However, I objected to the ID card scheme and I particularly objected to the central multipurpose database. That is what makes it different from other identity cards; it is a sleight of hand when people say, “We in this House have identity cards for other purposes”. They are very different from the one that connects you to that all-powerful central database.

The ID card was presented very differently from the way in which it is now being presented. It was presented as a tool of empowerment and as a voluntary programme. I say to my noble friend Lord Brett that I have no false memory syndrome about this. It is too close to my heart. I remember only too well that ID cards were presented as the answer to a maiden’s prayer when it came to terrorism, crime, illegal immigration and abuse of the benefits system. We all pointed out that they would not be capable of doing any of that successfully. I also remember that they were going to be compulsory. Even after all the efforts in this House and the campaigning outside, and although our Government conceded to voluntariness, I always feared that, given the direction of travel, compulsory ID cards were waiting for us somewhere down the line.

The reason for my objection is that I believe ID cards create a different kind of relationship between the citizen and the state. That is what we have to hold on to. Inevitably, it would have meant the police being able to require a person to produce their identification on the street, which goes against the way in which our nation has worked. We have a common-law system. It is a great source of pride to us all that we are able to say when we are brought before a court: “Prove it”. When stopped by the police, we are able to say: “Do you have reasonable cause to stop me?”. Those things make for the British characteristic of not being supine or a compliant citizen, but somebody who knows who they are. We must always remind ourselves that the state is here at our behest; we are not here at the behest of the state. The ID card system was taking us down a very unfortunate road.

I say briefly that, while there may be an old guard on these Labour Benches that cannot accept that in government our party made some mistakes, happily there is a new generation now in leadership which takes a very different view.

Terrorism Act 2006 (Disapplication of Section 25) Order 2010

Baroness Kennedy of Shaws Excerpts

Monday 19th July 2010 Lords Chamber

Terrorism is an enormous international challenge, and it is vital that we support the police and other agencies in their work to keep us safe from it. That is not just a priority for this Government but a public duty that we all share. However, we also share the commitment to upholding the hard-won democratic freedoms that are the thread running through our history. A six-month renewal will provide the opportunity to give full consideration to the important issues involved. I commend the order to the House.

[Baroness Kennedy of The Shaws]

My Lords, I want to comment on the interesting statement by the Minister. I speak as the chair of Justice, which is the UK-based human rights and law reform organisation whose mission is to advance access to justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists. This House will know that that international commission set up a panel of eminent jurists who reported last year on the issue of terrorism and in February 2009 produced a report, Terrorism, Counterterrorism and Human Rights, in which it recommended that there should be a review of counterterrorism legislation in this country because of its concern that there had been so much erosion of civil liberties and of some of the protections and safeguards that are so important to our system, which is admired around the world.

We therefore welcome the Government's review. The steps they are taking to reinstate many of the liberties that we saw eroded are greatly welcomed by human rights lawyers. However, we are concerned that the Government are still going to continue with the 28-day pre-charge detention relating to terrorism, even for six months. In our view, with great care taken to look at the evidence, we are confident that 28 days is not necessary. We make the argument that it is not necessary because plainly it is at odds with the right to liberty. Also, the period is far longer than any other western democracy has in place, and there is a lack of effective safeguards.

I remind the House of a number of the facts of the cases that have come before the courts in recent times. Our review of the use of the 28 days over the period since 2006, when 14 days was raised to 28 days, found that six suspects had been held for as long as 27 or 28 days. Three of those were released without charge. Three were charged with terrorism offences but, of those three, two were acquitted and only one was convicted. In that one instance where there was a successful conviction, it appears that the great majority of admissible evidence was already available to the police at the time of arrest; it was certainly available before the 14 days were up.

We have also seen that five of the six suspects held for up to 28 days were arrested in the context of Operation Overt, the liquid bomb plot. I should declare that I was one of the counsels in that case so I am familiar with it in some detail. Indeed, all three men who were ultimately convicted were charged within 12 days of their arrest—the 28 days were not necessary in that case either.

Justice urges the House that to defer a decision on this matter even for six months is too long. I remind noble Lords that in other western democracies, particularly in common law countries, there is nothing like this erosion of safeguards and protections. In Canada, there is a requirement to charge within a day; in the United States, it is two days; in South Africa, it is two days; and in New Zealand, it is two days. Even in other parts of Europe which do not have the common law system, to which I am so committed, the position is different. For example, in Germany the period is two days; in Spain, it is a maximum of five days; and in France, it is a maximum of six days. Charging is expected to take place within those limits.

We are concerned that there is an incompatibility with Article 5 of the European Convention on Human Rights. We think that it is highly likely that Schedule 8, the authorisation procedure, will be found incompatible with the requirements of Article 5. We ask the Government to look again at whether there is even a need to have the six months’ extension which is now being considered.

However, I say all of that in the context of our view that the Government are taking the right steps in having this inquiry into what is needed. Clearly, no country should roll over in the face of terrorism and special steps have to be taken, but it is our view that the extension to 14 days, which was introduced, is adequate to the challenges that we all face.

[Lord Pannick]

My Lords, I share the concerns expressed by the noble Baroness, Lady Kennedy of The Shaws. I appreciate that we are debating this issue in the context of the Government’s very welcome announcement that they will conduct a review of the 28-day pre-charge detention limit. However, I am unpersuaded that there is any basis for continuing this power, even on a temporary basis.

There are three points which your Lordships will wish to have well in mind. First, this is an extraordinarily exceptional power. English law normally requires that suspects be charged or released within four days. The pre-charge detention limit for terrorist cases was limited to seven days until 2003, when it was raised to 14 days. English law jealously restricts the power of the state to detain people without charge, and rightly so. It is only when charged that the person concerned has the right to be told the accusation against him and to respond to it. For the state to hold a person without charge for up to four weeks is inevitably a very substantial interference with their freedom and inevitably has a very damaging effect on their work, family relationships and reputation in the community.

Secondly, there must, therefore, be a very heavy onus on the Government to justify such an interference with basic liberty. The real question is whether they can meet that heavy onus. I suggest that they have failed to identify any practical experience whatever which establishes, or indeed even suggests, that a 14-day limit would not suffice. This is, of course, not a new problem. The Home Office has all the relevant information. Will the Minister in her reply please identify for the House whether there are any cases in which pre-charge detention after 14 days was necessary to the successful prosecution of a terrorist suspect? It is surely not sufficient for the noble Baroness to assert—and who can disagree with the assertion?—that it is impossible to be sure that there might never in the future be an occasion when more than 14 days might be required, as she put it.