Protection of Freedoms Bill
Baroness Miller of Chilthorne Domer Excerpts(13 years, 7 months ago)
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Baroness Miller of Chilthorne Domer
My Lords, it is very interesting that the Opposition have chosen to table a fairly narrow amendment to RIPA to explore these issues. In fact, the criticism from the very moment that it was conceived, let alone drafted or passed into law, was that it was poorly drafted and had many problems which I shall enumerate more fully under my Amendment 128.
It is interesting that the Opposition have chosen to table such a narrow amendment. Have they ignored all the other constructive suggestions that have been made? They are focusing their attention simply on this one issue when, in fact, as the noble Lord, Lord Rosser, has pointed out, it is probably the area of RIPA with the least problems.
Lord Henley
My Lords, I am grateful for that intervention from my noble friend Lady Miller.
The measures in Clauses 37 and 38, together with the changes that we propose to make through secondary legislation, will deliver the coalition commitment to limit local authority use of RIPA—a commitment we made when the coalition came into being following the last election. The Bill also gives effect to the conclusions of the counter-terrorism review which was published in January. That review recommended two changes to the use of RIPA powers by local authorities.
First, these clauses will require that the exercise of RIPA powers by local authorities be subject to prior judicial approval. The second change, which will limit local authority use of directed surveillance to the investigation of offences which carry a maximum six-month sentence, will be implemented through secondary legislation made under RIPA. That will ensure that direct surveillance cannot be used to investigate relatively low-level matters, such as littering, dog fouling and schools enrolment, while still allowing it to be used against large-scale matters such as fly-tipping or waste-tipping, extensive criminal damage and serious or serial benefit fraud cases.
In response to representations received during the review, we have decided to make an exception to the seriousness threshold for offences relating to the underage sales of tobacco and alcohol. The investigation of those offences relies heavily on the use of directed surveillance and so in these circumstances the review concluded that it was appropriate to have a limited carve-out so that trading standards officers could continue to take effective action against businesses which seek to flout the law on age-related sales.
The conclusions of the counter-terrorism review were endorsed by my noble friend Lord Macdonald, who provided independent oversight of the conduct of the review. However, the amendment seeks a rather wider review of RIPA. I will say straightaway that, although the Government agree that it is essential that people’s privacy is protected from any unnecessary or disproportionate access by public bodies discharging their duties, this is precisely why RIPA was introduced, debated and passed by Parliament. And it is precisely why the way it is working is kept under constant review—not just by the Home Office but by the independent commissioners who report to the Prime Minister and publish annual reports which are laid before Parliament.
In bringing forward the current proposals to limit local authority use of RIPA, we are responding to public concern about a specific area in which the law operates. The measures are intended to restore confidence and ensure that any fears of future misuse are unfounded. But there is no well-founded indication that there is a need for much more fundamental reform of RIPA. Indeed, any regulatory regime would need to be built on precisely the same principles and contain the same human rights safeguards as RIPA is built on.
No one should be complacent about how our right to privacy is safeguarded. The measures before us come from one review and were endorsed by a public consultation. We need to get on and deliver them, but I put it to the noble Lord that another review before we have delivered the recommendations of the first would be premature and no doubt expensive—I do not know how many other reviews he will propose during the passage of the Bill. We will continue to monitor how the new arrangements are working in practice and adjust our approach if necessary. The developments will be reported on also by the independent RIPA commissioner, whose published reports, as the noble Lord will be aware, are laid before Parliament each year. We are confident that the measures in the Bill, together with the associated secondary legislation introducing the seriousness threshold, will prevent local authorities using RIPA in a way that undermines public confidence. Therefore, I hope that the noble Lord will feel able withdraw his amendment.
Baroness Miller of Chilthorne Domer
My Lords, the first seven amendments in this group would enable the Committee to examine a little further the existing complicated system for administrative authorisation. Where the Bill refers to judicial authorisation, one imagines that somebody from the judiciary will authorise whichever investigatory power is being used. However, in the section in the Bill to which my amendments apply, the administrative officer and his superior agree that surveillance is necessary, and the initial authorisation remains an administrative decision that does not come into effect until the approval of a magistrate is given. However, the magistrate will not examine why authorisation is being applied for or anything about the individual concerned; it will be just a review to make sure that the process has been reasonable.
The amendments examine whether the Bill will make the system any more transparent and whether it will be any easier to challenge unfair applications through the Investigatory Powers Tribunal. They examine also whether the system will become more efficient or cheaper. I welcome the Government’s desire to bring judicial authorisation more into the system, but I wonder whether it is sufficient.
Amendment 128 is much wider. I heard the Minister reply to the previous amendment to the effect that the misuse of the Act has been sufficiently addressed, but Amendment 128 has been tabled to probe the Committee’s view on the urgency of reviewing the whole RIPA fabric. This is for several reasons. First, since RIPA was conceived back in the late 1990s, technology has moved on enormously and things are able to be done now which were unimaginable then. It has nothing to do with phone hacking and the News of the World issue—which is still illegal—but with technical and storage capacity. In the 11 years since RIPA was passed, both of those areas have changed out of all recognition.
On re-reading that Act, there appears to be an enormous patchwork of different authorisation schemes, of which this is just one example. That does not seem an efficient way to proceed. The Minister referred to the expense of reviewing. There may be an expense in the inefficiency and patchwork of systems, but what concerns me most is that there are sufficient safeguards against unnecessary and disproportionate use of the surveillance powers.
As to the sheer scale of the use of the powers, we have come to accept that their use is necessary for serious crime and terrorism issues. However, since the Bill was passed, there have been some 3 million decisions made under it by public bodies; 20,000 warrants; 4,000 authorisations for intrusive surveillance and 30,000 for directed surveillance—and that does not include the intelligence services because those figures are not made public. So there is an issue with the scale of what is happening.
The Minister may feel that an inquiry will be expensive and he may be correct—obviously it will incur some expense—but there may be savings to be made if we consider whether the kind of umbrella that RIPA provides is adequate for purpose. It seems to be an umbrella that is full of holes, not only in the authorisation process but in its classification of the different kinds of intrusions—for the sake of the Committee’s time I shall not go into them—which are immense. For example, a phone call that is listened to from outside a house and one that is listened to from inside a house with a bug are different kinds of intrusions and carry different authorisations. As far as the public are concerned, that is a complicated regime—it may be necessarily complicated—and it can pose enormous problems in the complaints procedure if an individual has been subject to that intrusion.
If, as a member of the public, you want to complain about unfair investigatory powers, it is obviously extremely difficult. I have mentioned the figure of 3 million. Out of that, 1,100 complaints have been heard by the Investigatory Powers Tribunal, of which only 10 have been upheld. That tends to suggest that there is a problem.
I am sure that many Members of the Committee have seen the thorough Justice report, Freedom from Suspicion: Surveillance Reform for a Digital Age, which lays out the issues in a detailed manner and gives all the references. Given the evidence that is presented in that report alone, Parliament has a duty to hold the kind of inquiry that Amendment 128 seeks. I beg to move.
The Deputy Chairman of Committees (Lord Haskel)
Perhaps it will be for the convenience of the Committee if I explain that in an earlier edition of the groupings all the Amendments 115 to 128 were grouped. In a later edition there are two groups: first, Amendments 115 and 120 to 128; and then a second group with Amendments 116, 117, 118, 119 and 122. So there are two groups.
Baroness Miller of Chilthorne Domer
My Lords, I must congratulate the noble Lord, Lord Selsdon, on his success in having his amendment taken forward to the next stage. Every small move in this direction is very important, because, as my noble friend Lord Phillips of Sudbury said, this is a matter of civic trust. I thank the Minister for his reply. The issue of civic trust comes up because of the inability of current legislation to deal with the scale of interference in areas such as internet use. The intelligence agencies and the police have better systems in place; I have in mind instances where people do not know about the interference, such as in the BT and Phorm case. A natural tension exists: it is the duty of government to consent to intrusion in the interests of security and crime prevention, but it is the duty of Parliament to make sure that those intrusions are proportionate. Although I shall on this occasion withdraw the amendment, I hope that we will return to it. I beg leave to withdraw the amendment.
Protection of Freedoms Bill
Baroness Miller of Chilthorne Domer Excerpts(13 years, 8 months ago)
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Baroness Miller of Chilthorne Domer
My Lords, the Bill marks an important moment. It is the start of the turn of the tide from a very low point where sophisticated new technologies, fear of terrorism, authorities with little regard for privacy and a series of illiberal Home Secretaries combined to make the UK “surveillance Britain” under the previous Government. So when Justice called the proposals a sticking plaster, it missed the point. This Bill is a very important first step in addressing what privacy and freedoms should mean in the 21st century. Justice has just published an excellent new publication Freedom from Suspicion - Surveillance Reform for a Digital Age, which highlights the fact that we have moved into a new era that existing legislation is not able to cope with. It did not anticipate the rapidity of technological advance, which is enormous. The scale of technological capability is beyond anything that was imagined, even when the Regulation of Investigatory Powers Bill was drafted.
In common with all noble Lords, I can remember when opening someone's post without proper authorisation was a serious offence, yet in the internet age, popping in to their IP address and having a look at what they are up to is not taken as seriously as it should be. An example is that, legislatively, RIPA offered protection when, in 2006, BT and Phorm decided to run a secret trial of marketing software that intercepted the private internet sessions of thousands of customers. It was illegal, but the CPS took no action. That set a very bad precedent that ignoring RIPA is not serious.
In April this year, the Information Commissioner said:
“RIPA was drafted for the wiretap age”.
The Law Society’s comments are similar. In its written evidence to the House of Commons Public Bill Committee on this Bill, it stated that RIPA is,
“a confused and complex legislative framework for surveillance, along with equally complex and overlapping oversight arrangements”.
Other examples of the technologies give us an idea of the complexity. The Guardian has highlighted that the Metropolitan Police are operating covert surveillance technology with a signal that shuts off mobile phones remotely, intercepts communications and gathers data about thousands of users in a targeted area. That has big implications for the right to protest and freedom of expression. The Met has also purchased software to map digital movements using data gathered from social networking sites, sat-nav equipment, mobile phones, financial transactions and IP network logs.
How should this be regulated? Clause 37 gives the Secretary of State welcome power by order to require judicial authorisation for targeted surveillance authorisations by other public bodies, but I would like us to debate in Committee an amendment providing that prior judicial authorisation would be an integral part of the whole system. Such authorisation would have picked up the disgraceful, long-term and costly surveillance operations undertaken by the police on peaceful environmental movements.
How do we as parliamentarians assure ourselves that such capability is being used in the right way? We have the commissioners—my noble friend Lady Hamwee mentioned that we do not have a collective noun for a group of commissioners—and the Bill adds two new ones: the Surveillance Camera Commissioner and the Commissioner for Retention and Use of Biometric Material. The problem is that the commissioners have different roles and areas of responsibility that have been built up in a very piecemeal way. There are not overlaps but there are gaps in responsibilities. I would like to explore whether we would be better served by one privacy commissioner with an overarching role. We know that the Chief Surveillance Commissioner has quite limited powers. His function is just to keep under review the operation of the powers and duties of directed and covert surveillance. The Interception of Communications Commissioner’s role is limited to the oversight of those who issue warrants and the procedures of those acting under warrants. He has no power to investigate complaints or to advise the public.
The best model—the Information Commissioner—is responsible for promoting and enforcing compliance with the Data Protection Act 1998. It is this role of advising the public that is really important. Citizens need an independent powerful figure—who is outward-facing to them, as well as inward-facing to the authorities operating under the various legislative frameworks including RIPA. We have a lot of work to do in this Bill just to keep up with the capabilities of the technology. I welcome a debate on how to do that.
I particularly welcome the repeal of Section 44 of the Terrorism Act 2000: “stop and search”. It is very welcome indeed. I also welcome proposals that will see the destruction of the DNA samples of those arrested and charged with a minor offence but never convicted. I am, however, very disappointed that the position of children arrested or charged but never convicted of serious offences is unchanged. We need to examine that closely in this House. Finally, I am disappointed that there is no amendment to the Criminal Justice and Public Order Act 1994 so that it recognises peaceful protest as a fundamental part of democracy. It leaves in place the “aggravated trespass” offence. That was recently employed, for example, against all the individuals who were peacefully protesting with UK Uncut at Fortnum & Mason earlier this year in March. That use of “aggravated trespass” is an affront to the concept of peaceful protest.
Public Disorder: Social Networking Sites
Baroness Miller of Chilthorne Domer Excerpts(13 years, 10 months ago)
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Baroness Miller of Chilthorne Domer
To ask Her Majesty’s Government what steps they intend to take concerning the use of social networking sites during periods of civil unrest.
The Minister of State, Home Office (Baroness Browning)
Following the recent riots, the Home Secretary held a constructive meeting with ACPO, the police and representatives from the social media industry. Companies have made clear their commitment to removing illegal content and, when appropriate, closing accounts, whether at the request of the police or because of a tip-off from others. It was agreed to step up co-operation to ensure that these processes are working effectively. The Government are committed to a free and open internet, and we are not seeking additional powers to close down social media networks.
Baroness Miller of Chilthorne Domer
My Lords, I thank the Minister for her Answer. Can she confirm that the police are not, then, seeking powers to disable Twitter, for example, when they deem it necessary? Would she agree that there is an important balance to be struck between, on the one hand, catching and prosecuting those who use social media for anything illegal, whether incitement to loot or child pornography or any other illegal purpose, and, on the other hand, a wholesale surveillance and censoring operation that should remain totally unacceptable in this country? Can she assure me that the striking of that balance will be an open and accountable process rather than one decided behind closed doors by the owners of social media networks, the police and the Home Secretary?
Baroness Browning
I can reassure my noble friend. She will be aware that the police and other investigatory agencies are required to comply with the Regulation of Investigatory Powers Act 2000 and other legislation which seeks to bring that balance. It is not the case that they can do things unilaterally without being held to account.
Police Reform and Social Responsibility Bill
Baroness Miller of Chilthorne Domer Excerpts(14 years, 1 month ago)
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Lord Campbell-Savours
My Lords, I shall intervene for a few moments. We are often told that scrutiny in the Lords is better than that in the Commons, but this is a section of the Bill that I would have liked to have talked on, under a number of amendments, and due to pressure of time and the fact that we will be going late this evening we will not have the opportunity. This section of the Bill will not be subject to the level of scrutiny that I believe it deserves.
Baroness Miller of Chilthorne Domer
My Lords, I follow that by saying that this is a particularly important section of the Bill. My noble friend Lady Hamwee laid out a little bit of the history of this legislation. Last time, with the SOCPA provisions, which are now being repealed, Parliament got it very wrong—although it got it wrong in a panic, as a reaction to terrorism. There are still things in the Bill that are deeply worrying, which is why it merits scrutiny. Having said that, I welcome the fact that the Government are repealing the SOCPA clauses.
In speaking to Amendment 244ZZA, I shall give an example of one thing that should really worry us. My amendment suggests that we should remove from the Bill the words “or is about to”. If somebody is doing a prohibited activity, it is quite plain that the police can give them a direction to stop them doing it. However, how will the police know that the person is about to do a prohibited activity? Is the policeman a mind reader? Can he or she guess what that person is about to do? There is something slightly more worrying behind these words. It disguises what we now have in this country—that is, two classes of citizen. The vast majority of the country do not fall into this class, but there is a second bunch of people who are classed as domestic extremists. Some of them may be in your Lordships' House, because to be a domestic extremist, for which there is no legal definition, you simply have to be somebody whom the police think has regularly gone on protests. I do not know the rest of the criteria that the police use to judge, and I do not believe that the Home Office is very aware of them, because when I asked a series of Written Questions about this to the Minister’s predecessor I was told that there is no legal definition. There is a database, and people can find out if they are on the database if they apply under the Freedom of Information Act. However, of course they would not know to apply, because most people would not suspect that they were on it.
This year we have also had the issue of the somewhat out-of-control undercover surveillance of activists. I am very glad that HMIC is currently carrying out a review of operational accountability of undercover work of the national public order intelligence unit, but we have not had the results yet of that review.
In addition, the Metropolitan police force has just acquired some suspect-mapping software called Geotime, which can take account of the activity done by domestic extremists in their everyday lives. For example, it can follow social networking when they use their sites, as well their mobile use, cash withdrawals and sat-nav use. The police can build up thus an entire picture of somebody who is not a criminal or somebody who has been convicted of anything but someone who is classed as a domestic extremist, for which, as I say, there is no legal definition. It is quite worrying. Those people, the domestic extremists, have not necessarily done anything criminal—nothing except to be known protesters and activists. In other words, they are people who might do something. That is what worries me about the wording,
“or is about to do”.
Baroness Hamwee
My Lords, I beg to move Amendment 244ZZB. I suppose for Hansard I should also say that I am also speaking to Amendments 244ZA, 244ZAC, 244ZCE, 244ZCF, 244ZDZA, 244ZDZB, 244ZEA, 244ZEB, 244ZEC, 244ZED, 244ZEE, 244ZEF, 244ZF, 244ZG and will oppose the Question that Clause 149 stand part.
The first half of the amendments in this group would replace “constable” with “senior police officer” in Clauses 144, 145 and 146. Under Section 12 of the Public Order Act a “senior police officer” means the most senior in rank at the scene. I had wondered whether a constable was referred to because of the seizure powers that would be likely to be carried out in many instances by a relatively junior officer. However, the definition in my Amendment 244ZAC answers the point. The Public Order Act got it right by stating that the officer should be the most senior in rank at the scene. It is appropriate to ask the Government to justify why they have extended that right, only in the case of Parliament Square, to warranted officers below the most senior in rank at the scene.
What worries me more are the powers to be extended beyond warranted officers; those powers are the subject of the remainder of the amendments in the group. Powers are to be given by the Bill to authorised officers, who will include employees of the GLA and Westminster City Council. Assistant Commissioner Lynne Owens of the Metropolitan Police gave evidence to the Public Bill Committee in the Commons to the effect that a broad discretionary power, vaguely drafted, is very difficult for a police officer to exercise in the middle of a protest. However, police officers have training and experience that are probably not available to authorised officers—council employees. I know that the duties of some council employees have been extended to some public order matters. There are wardens in Trafalgar Square, but their experience and duties are rather different from those expected under the Bill.
The Bill grants powers of direction and seizure to an authorised officer, although, as a result of an amendment during proceedings on the Bill before it reached us, only a constable may use “reasonable force”. I welcome that, of course, although I cannot quite envisage an authorised person—a council employee—seeking to seize an item, its owner holding on to it, and the authorised person saying something such as, “Oops, please wait right there while I get a constable”. It is not clear that this is workable. It is better not to let those who are not warranted officers—warranted officers would be clearly identifiable—getting into the situation at all.
This was something on which the Joint Committee on Human Rights made a number of comments, referring to the fact that the Minister had explained that the Government thought it would be bureaucratic and time-consuming to limit the direction-making power to police officers. I am well aware of how much work the Committee has to get through tonight, but I nevertheless want to read the JCHR’s recommendation into the record. At paragraph 1.22 of the report the committee said:
“We are concerned that the main reason given by the Minister … is cost and administration saving”.
The committee continues:
“We welcome the Minister’s reassurance that these powers would be accompanied by guidance dealing with the appropriate exercise of discretion, identification and, in particular, with the reasonable use of force. However, no provision for these important safeguards is made on the face of the Bill. We regret the Government’s reluctance to accept the need for further definition or statutory guidance. In the absence of statutory safeguards, we do not consider that the Government has provided adequate justification for the extension of this broad discretion to use such powers to local authority employees or contractors”.
It also states at paragraph 123:
“We consider that the power to seize property is a power of the type which should generally be reserved to police personnel. Without further justification for seizure powers to extend to the local authority, we consider that this power should be limited to police personnel”.
I have cut down the amount that I was intending to read into the record. I beg to move.
Baroness Miller of Chilthorne Domer
Briefly, I agree heartily with my noble friend. It is not just a question of the seniority of the police officer, or whether they are warranted. My noble friend made some important points. Every inquiry into difficulties with protests recently has found that training is the issue. I hope that the Minister will be able to tell the House what provisions are in place under this Government for better training. The other place concluded after G20 that never again must untrained officers be placed in the front line of public protest. Nowhere is more front-line than Parliament Square. Inadequate training in the law, including human rights and public order powers, and a lack of clarity about the role and function of the forward intelligence teams, who are very much on the ground in the case of bigger public demonstrations, have been issues.
I realise that since some of those comments were made, we have had the appointment of Sir Hugh Orde, who has brought some valuable experience in human rights training from Northern Ireland, which was recognised for integrating human rights training into general training. In human rights training, it is so important to get the balance between freedom of expression and that spilling over into something else.
The previous Government rather sloped their shoulders with regard to the Home Office giving guidance on what training should be given and said that it was a matter for ACPO. Does the Home Office feel more strongly now that guidance on training, particularly in this regard, is a matter for the Home Office?
Lord Rosser
My Lords, I, too, will be brief. I have one amendment in the group. It relates to Clause 149 and deals with a very similar issue to that raised by the noble Baroness, Lady Hamwee: the definition given of “authorised officer”. The clause states that it can be,
“an employee of the responsible authority”,
or,
“any other person who, under arrangements made with the responsible authority … is so authorised for the purposes of this Part”.
All I want to add is that there are concerns, which have been eloquently expressed, about the powers that may be operated by someone other than a warranted police officer. I appreciate that the purpose of the amendments tabled by the noble Baroness, Lady Hamwee, is to ensure that it is a senior police officer.
It will be very helpful in probing how the Government see the role of people other than warranted police officers under this part of the Bill, if the Minister could say what those authorised officers, as defined under the Bill, will be expected to do. What will an authorised officer not to be able to do that a warranted police officer could do under the Bill?
Will the role of the authorised officers include policing demonstrations? How will people know that they are authorised officers under the terms of the Bill, since presumably they are not going to be dressed like police officers? Will it be obvious to all concerned? The Minister will know from evidence given in relation to this Bill that a view has been expressed in police circles that even clearly identifiable police officers may at times have difficulty in having their decisions and instructions accepted by those who are taking part in demonstrations—certainly in the heat of the moment. Surely that becomes even more difficult, depending on what the Minister has to say about the role of authorised officers, in relation to somebody who is not a police officer. Who will determine the suitability of these authorised officers for the role envisaged for them in this Bill, whatever that role may be?
I hope that the Minister will be able to clarify the situation and perhaps put minds at rest to some extent by what he has to say about the role and responsibilities he expects for these authorised officers who are not warranted police officers.
Lord Campbell-Savours
My Lords, I intervene with another rather silly and naive question. I ask these questions because previously sometimes the most ludicrous things have happened and we find an article in the Evening Standard about action taken during one of these demonstrations which none of us comprehends. I want to ask a very simple question. Clause 146(1) says,
“if it appears to that constable or officer that the item is being, or has been, used in connection with the commission of an offence under section 144”.
What about a deckchair? If a demonstrator turned up with a deckchair, who will decide whether the chair is for sitting upon or for sleeping upon? It is in those silly little areas that stupid decisions are taken that can lead to trouble in crowds, and subsequently to violence. It can be the small things that trigger a demonstration. This is why this whole area of the Bill should have been dealt with in far greater detail than it has been, and I simply ask what might appear a naive question but may well turn into an issue at some stage.
Baroness Miller of Chilthorne Domer
I have one illustration to add to the point that the noble Lord, Lord Campbell-Savours, made so well. Who is to say that that person with the deckchair is even on the demonstration? One of the issues under the—happily to be repealed—SOCA provisions was that a person turning up in a T-shirt with a slogan saying “down with the war” might be taken to be on a demonstration but might be taken to be walking down the road in a T-shirt. The same thing would apply to things like deckchairs and blankets. Is a poncho something for sleeping in? It is a sort of blanket but your head can go through it. There are all sorts of issues that the noble Lord, Lord Campbell-Savours, is correct to raise that are going to be an immense matter for judgment.
Baroness Browning
My Lords, I will pick up on that last point about seizure before I begin to address the amendments. Police officers have different seizure powers that are largely based on their need to prevent crime or to seize evidence for a crime. People have mentioned deckchairs and other such items. Depending on the circumstances, it would be up to the police officer concerned to exercise their judgment about whether the item they were seizing was involved in either preventing crime or was evidence that might be used in a later prosecution.
Amendment 244ZZB is premised on ensuring that only the most senior officer present at a scene can issue a direction to cease doing a prohibited activity. The Government fully appreciate the likely challenge to these provisions. We understand that the intention behind the amendment is to ensure that directions are properly issued by escalating authority to the senior officer present at the scene. On a point of principle, the Government are confident that police constables, regardless of rank, can issue appropriate directions. The Government support the return of discretion to police professionals.
On a point of operational practicality, the package of reforms is designed to support early and proportionate interventions by the police to prevent an escalation of prohibited activities. However, the amendment would hinder that. Amendments conferring powers only on the senior officer present at the scene would have an adverse impact on practical enforcement on the ground, and on that basis I urge the noble Baroness to withdraw the amendment.
The same arguments extend to Amendment 244ZA and other amendments in a similar vein. These amendments would remove powers from authorised officers of the Greater London Authority and Westminster City Council, about which I shall say more in a moment. The effectiveness of the new legal framework in Part 3 depends on a strong collaborative partnership approach between the Metropolitan Police, the Greater London Authority and Westminster City Council, with which the Home Office continues to work closely. It is necessary for all three agencies to be able to exercise some powers to avoid the type of situation in which, for example, a heritage warden employed by the Greater London Authority found himself unable to act or to deal with an individual until a police officer arrived to assist. Removing all powers from authorised officers would make the provisions in Part 3 unworkable.
Clearly, members of the public must be able to identify authorised officers, understand what powers they have and their authority to use them, and what avenues of complaint are open to them. Greater London Authority heritage wardens carry identification and wear a uniform, as do authorised officers from Westminster City Council. We understand from both the GLA and Westminster City Council that to date there have been no issues with authorised officers’ identification for the purposes of implementing by-laws. In addition, we are working with the relevant authorities to develop enforcement protocols and guidance on all these issues. I say to my noble friend Lady Miller of Chilthorne Domer that the Home Office has undertaken to provide the guidance and operation for this part of the Bill.
The Government recognise the concerns generated by the powers that are available to authorised officers. That is why, as noble Lords may know, we have listened to concerns raised in the other place and have decided to remove the power to use reasonable force from authorised officers. However, the amendments would take away the powers of authorised officers to deal with even the most routine cases. I urge noble Lords not to press their amendments, which would make the provision in Part 3 unworkable. I hope they will feel that I have given them sufficient information to be more confident about how we intend to proceed with this part of the Bill.
Baroness Miller of Chilthorne Domer
My Lords, the Committee will have noticed that I confused my ZZAAs before, which is why I moved that amendment earlier, for which I apologise. It is confusing when they are grouped like this.
With the amendments in the name of my noble friend we move to whether the maximum fines for a summary conviction for an offence are proportionate under Clause 144 for failure to comply with the direction. We feel that it would be more proportionate to move from level 5 to level 3, which the JCHR comments on. It says that the Minister may wish to impose an effective deterrent, and that,
“any punishment should be proportionate to the relevant offence. We do not consider that the Minister has explained why these offences differ significantly in impact or scale from other public order offences to justify a significantly greater degree of sanction. Without further justification the Bill should be amended to reduce the sanction from level 5 to level 3, in line with other similar public order offences”.
I should be grateful if the Minister could explain why this is considered worthy of such a significantly greater fine.
Amendments 244ZCG and 244ZCH would reduce from 90 days to 14 days the period in which an activity is prohibited. Surely 90 days is really very extreme. Do we imagine that people will hang around for 14 days and try to repeat their activity? That is possible; it might be taken as part of the freedom to try your demonstration again. But similarly, the Joint Committee on Human Rights asks the Government for an explanation as to,
“why they consider that it is appropriate for the Court to have such broad Order-making powers in connection with the proposed offences. In particular, the Minister should explain why lengthy Orders banning an individual from the vicinity of the controlled area around Parliament might be appropriate”.
Under the provisions of SOCPA part of the enormous offence caused by the clauses in that Bill was to do with banning individuals from an area. The Government need to proceed with extreme caution in this case. If individuals feel very strongly about something that is about to happen—I could quote, for example, the country going to war—of course, individuals will want to protest again and again. Is it really reasonable to prevent them doing so for three months just because they lay down to sleep although they were directed not to do so and contravened the Act? In any case, if they feel that strongly, why should they not do it again? I am not condoning people undertaking criminal activity but in this case, there is a very fine line between taking all individuals who protested and contravened something and banning them from appearing anywhere outside Parliament for 90 days. I do not feel that that is proportionate and I beg to move.
Lord Wallace of Saltaire
Having heard this useful further discussion, I invite the noble Baroness to withdraw her amendment.
Baroness Miller of Chilthorne Domer
My Lords, on behalf of my noble friend I thank the Minister for his reply on the retrospective aspect of this matter. I am sure that she will be as reassured as I am by that. I thank him for his explanation on why the penalty is as it is. I still wonder whether 90 days is rather heavy-handed. We will want to come back to whether police officers should be able to vary their guidance or their judgment of a situation on Report.
Around the House, we are in agreement that peaceful protest is a good thing and violent protest is not. On 28 March, we had a good example. At the Fortnum & Mason peaceful protest, 138 people were charged. Of several dozen violent protesters only 11 were charged. Somewhere there the police did not get their judgment right. I am grateful that my noble friend the Minister has had such broad experience of protests—going on them and now from the Dispatch Box. I am sure that he will be able to weave a careful path through this very knotty issue. In the mean time, I beg leave to withdraw the amendment.
Baroness Miller of Chilthorne Domer
My Lords, this group of amendments moves us on to amplified noise, which was referred to a moment ago. The Bill prevents all use of noise amplification equipment without prior authorisation, which rather returns us to the situation under the SOCPA provisions where you had to have prior authorisation for a demonstration. Following representations from Members of the other place and from this House, it is understandable that the Government have felt that they have to react to the issue of noise equipment. On the day of the visit of the President of the United States there were a couple of demonstrations outside this building. I am sure that all of your Lordships could tell that it was not necessary to have amplified noise equipment in order to have a loud demonstration, even from 30 or 40 people. The matter of whether we need such restrictions to be so overwhelming is one issue.
The Bill gives a large amount of discretion to the police as regards reasonableness, on matters such as whether a person is about to turn up the volume so that people around are likely to be able to hear it. That is very theoretical and it will make the life of the police more difficult if they have to make that sort of judgment. However, there is clearly a judgment to be made here. People have a right to go about their business in the square, whether they are tourists or Londoners, and they should not have to hear an incredible amount of noise—although the traffic is probably still the noisiest thing. Our amendments probe whether there should be an overall prohibition on amplification and whether the restriction should be so broad. I beg to move.
Baroness Browning
You can still hear it from there. I am not saying that that is where the loudhailer is; I am saying that you can hear it from there. You cannot hear what is being said; you just hear a shriek. As I have said, we are not trying to prevent protestors using a loudhailer but we want it to be proportionate in how it impacts on other people.
I shall just go through the regulations on applications. Twenty-one days is the period currently used by the GLA and Westminster to consider applications for loudhailers under local by-law provisions and Section 137 of SOCPA. Six days would be too short a period and would not give local authorities sufficient time to consult others. We are talking about a very limited area in which authorisation to use amplified noise equipment is needed. The authorisation scheme is there to protect competing interests in the limited space. Therefore, I urge the noble Baroness not to press her amendment.
I come to the court and the distinct issue of limiting its ability, on conviction, to make an order requiring the convicted person not to enter the controlled area of Parliament Square by imposing a time limit of no more than seven days. The Government’s provisions leave the length of time entirely to the court to determine, in line with the circumstances of each case. This is wholly appropriate and would allow the courts to deal with determined individuals who might be resolute in simply coming back after seven days. I hope noble Lords will understand that we believe we have got the proportionality right here. I will write to the noble Lord on his more detailed technical question about different types of equipment.
Baroness Miller of Chilthorne Domer
I thank my noble friend the Minister for her reply. She has certainly laid out the Government’s thinking very clearly. It is still possible to see one or two difficulties. For example, if you wanted to use a loudhailer at the last minute because you had only just decided to march on a particular issue, you would not have 21 days in which to apply to do so. In that case, would you be in contravention of what is in the Bill? There may be some other details that we shall want to come back to on Report, but we now have a clear understanding of where the Government are coming from. I beg leave to withdraw the amendment.
Lord Campbell-Savours
I am very sympathetic to the amendment because I feel quite strongly, and always have done, that people should be allowed to demonstrate in the square. This is a perfectly reasonable way of dealing with the difficulties that arise. Basically, you are simply clearing the square in the evening after the demonstrations have taken place during the day.
It always gives me a thrill when I drive around Parliament Square to see those people encamped on the pavement. This must be one of the only democracies in the whole world where people can demonstrate on the very steps of Parliament. It must be most enlightening for people coming in from all over the world to see it actually happening here in the United Kingdom. It might give them cause to reflect on the way we run our democratic arrangements in this country. This amendment should be seriously considered by the Government. It would certainly save a lot of space in the printing presses where they produce legislation and it would deal with the problem in a way that is perfectly acceptable. I hope it can be considered on Report in perhaps greater detail—perhaps even in the Division Lobbies.
Baroness Miller of Chilthorne Domer
The noble Lord, Lord Campbell-Savours, is quite right. When parliamentarians from other countries come here it is one of the things that they comment on—and not adversely. They do not dwell as much on the slightly messier aspect that MPs and some noble Lords have complained about. They are more impressed with the fact that the demonstrations take place. There is much attraction in the noble Lord’s amendment, not least for the Government. They have signed up to a bonfire of regulations and this gets rid of an awful lot of regulations all at once. I imagine that they will be nervous of adopting it because it seems perhaps too gentle but for my part I am very attracted to it.
Lord Wallace of Saltaire
I note that these two amendments are identical, and almost identical to the Private Member’s Bill of the noble Lord, Lord Marlesford. Does this replace his Private Member’s Bill or will we return to this on 1 July, which I think is now scheduled for the Second Reading of his Bill, for a third debate on the issue that began with the Second Reading of the Private Member’s Bill of my noble friend Lord Tyler last Friday?
As I have already said, I welcome the discussion of not just the future of Parliament Square but also the whole question of the democratic environs of the Palace of Westminster. If I might go slightly off ministerial piste, so to speak, I think that we all recognise that the most intrusive element in Parliament Square is traffic. Some of us were actively supportive of the World Squares for All initiative which intended to close off either one or two sides of the square. That would give us back a major democratic space. Part of the reason that the encampment has been able to lodge on those pavements for some time without interference is because it is difficult for the ordinary person to get across the traffic on to Parliament Square Garden under most conditions except in the middle of the night.
If we are going to discuss the whole issue of Parliament Square and demonstrations in the vicinity of Westminster, Abingdon Green and so on, I suggest that we need to pull together a committee which will include not just the authorities here but also the Supreme Court, the authorities of Westminster Abbey and elsewhere. I am sympathetic to a good deal of what is behind the amendment but suggest that if we are to discuss this area it is not just a question of the management of demonstrations or the encampment in the middle of Parliament Square. The Government are working with the Greater London Authority, Westminster City Council and the Metropolitan Police on effective enforcement protocols. Guidance will be issued to the public about these new provisions. However, that is about the narrow issue of the future of encampments in Parliament Square. The wider issues that I suspect the noble Lord wishes to get to require debate outside the confines of the Bill. I therefore request him to withdraw his amendment.
Baroness Miller of Chilthorne Domer
My Lords, my name is to this amendment. I pay tribute to the noble Baroness, Lady Meacher, for her energetic work in this area. She has given the House an excellent introduction to this amendment so I will not delay things at all, except to say that since the Misuse of Drugs Act 1971 one Government or another—indeed, society as a whole—have tried almost everything in the book. We have not got anywhere with it, really. The so-called war on drugs is a stalemate at best; at worst, we are losing the battle. This seems a good moment to try a different approach. Something in particular that has changed is that in the early 1970s, when we did not have the internet, people could not just order things online and get them by post. The public now are looking for consumer protection, whether for aspirins or legal highs. I understand that we all, whatever our political point of view, have to approach this question with great sensitivity; it is not an easy one. I am grateful to the noble Baroness for tabling the amendment in the way that she has. It gives us a great opportunity.
Lord Stevenson of Balmacara
My Lords, the whole House should congratulate the noble Baroness, Lady Meacher, on the way in which she has introduced the amendment. It has given us a good perspective on these issues and picks up on the very good debate on this topic that we had at Second Reading.
This side of the House took from that debate the concern that has just been mentioned about the rhetoric of the war on drugs and the worry that that may have outlived its purpose. Our concern is that there needs to be a new look at all the psychoactive drugs, and a policy that looks through one prism at the way in which they impact on individuals and society. Our continuing worry has been expressed again today: that policy in this area needs to be joined up much better, so that the health and educational aspects of all work on drugs are brought together. I know—at least, I hope—that the Minister shares in that expression of concern. Whether that amounts to a need for a new plan B in this area would be a good debate and might be something that we want to come back to on Report.
Our amendments in this group are supportive of the original amendment. We feel that control under the Misuse of Drugs Act 1971 may be appropriate for the most harmful new substances, but it has a number of negative consequences that can increase the dangers to some users from the substance in question and other more harmful substances for which new drugs may be substituted. It would therefore be appropriate for the ACMD to be asked also to consider the use of other legal powers, such as consumer protection legislation, trading standards in particular or, as has been discussed, medicines controls, before they consider recommending the use of temporary banning orders.
As has been mentioned again in this debate, the experience of the control of mephedrone indicates that the Government can at times have very limited information about both the impact of controlled substances on users and the changes in usage in terms of the adoption of both less and more harmful behaviours caused by the introduction of legal controls. Again, it would be appropriate for the ACMD to commit to reviewing the effects, both positive and negative, of each temporary ban before making any recommendations about making the control permanent. It should be noted that, even one year after a temporary ban has been introduced, robust data about usage and the impact of the ban are likely to be limited unless steps are taken to improve data collection processes. The evaluation should certainly consider, at the very minimum, the impact of temporary bans on the use of the banned substances: the actual use of the substance, its purity and the replacement of the banned substance with other substances, including controlled and other substances.
Finally, the Government should be encouraged to commit to reviewing the temporary banning powers in general after three years from their first use. This will provide an opportunity to evaluate how effectively they are being used and what impact they are having on the consideration of other control mechanisms.
Child Trafficking
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Lord McColl of Dulwich
My Lords, we have already had First Reading of my Bill to implement the human trafficking directive. When will we have Second Reading so that we can get transposition under way?
Police: Protest Groups
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Baroness Miller of Chilthorne Domer
To ask Her Majesty’s Government what discussions they have had with the police about the use of undercover operations in relation to environmental protest groups.
The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, decisions on intelligence gathering are operational matters for chief officers working within the relevant legal framework. The Government do not discuss with the police the use of undercover operations in relation to environmental protest groups. The Home Office has spoken to Nottinghamshire Police about the next steps in this case, which has been referred to the Independent Police Complaints Commission. It is talking to ACPO and HMIC about which body is in the best position to undertake a review of the wider lessons to be learnt.
Baroness Miller of Chilthorne Domer
My Lords, I thank my noble friend for her reply and I hope that we can have an inquiry into the workings of these police units. I am sure that she would agree that we cannot have a situation of overtly having freedom of speech and freedom to demonstrate but covertly demonstrators are in fear of agents provocateurs and of being spied on and put on databases held secretly when they have no idea what is going on. Does she agree that there is far more to this than the one simple case? We need to clean up the position so that people can demonstrate. If they commit criminal acts, they will be prosecuted, but if they demonstrate in good faith, they should be able to do so without fear.
UK Border Agency: Visas and Passports
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Baroness Miller of Chilthorne Domer
My Lords, I pay tribute to the noble Baroness, Lady Hooper, whose knowledge of Latin America and ear to the ground on all things Latin American have such benefits for this House. It is useful that she has secured this debate today to allow the Minister to update us on what has happened in the intervening year and to give us a flavour of a change of attitude, perhaps, with the change in government. Before I continue, I declare an interest as the chair of the All-Party Group on Bolivia and the chair of the All-Party Group on Street Children—the reason for the latter will become apparent shortly.
As we have heard, there were particular problems with the process when it changed over but the problem now—as I have heard it mentioned by people from both South America and central America—is perhaps less with the process than with the attitude. Indeed, that is reflected by the large community that we have living in London, whose members feel strongly that they are still not recognised in the UK as an ethnic group, a point that they have made time and again. They should be recognised as one, but there is no provision on the census form to ask whether people are Hispanic. Considering their numbers, I think that that would be a reasonable thing to do. The fact that they are not really recognised as a group has, I believe, a knock-on effect in their feeling about applying for visas.
My noble friend Lord Avebury mentioned that the Bolivians felt singled out. It was perhaps unfortunate that, even under a Labour Government, the two most left-wing Governments in Latin America—those of Bolivia and Venezuela—failed to get the visa waiver through. The noble Baroness, Lady Gibson, raised this issue in the House some eight months ago and was told of the various reasons for it. Have those criteria since changed and, indeed, would those people wishing to come and visit their relatives here for a short time, for example, be able to do so and to benefit from the visa waiver? We benefit from the many people who have come here. Perhaps they came here as economic migrants but they now work in some of the most invisible jobs in London, in cleaning in particular. Living as I do in Kennington when I am here, I often catch a bus home towards Elephant and Castle and meet them in the evening. We need to recognise that they, too, need their families to be able to visit without too much difficulty.
We heard today that the UKBA has lost thousands of asylum seekers through the system, which highlights again the question that the Government are at some stage going to have to address: amnesty for long-term residents. These people, who have been here for a long time, are working. Their children are probably in schools and their lives are made extremely difficult because they can have no legal status. We lose out as a country from the fact that they cannot pay taxes because they cannot officially exist. That is a problem—and all the more of a problem in these times of austerity.
Before closing, as we have the Minister from the Home Office replying to this debate, I want to mention the issue of Britons going the other way to Latin America. That is why I declared an interest as the chair of the All-Party Group on Street Children. It has been brought to our attention by a number of NGOs working in the area that the problem of sex tourism, where people from the EU are going to Latin America, is growing and that it is children whom those people are preying on. That is a big issue, so we should not think just of people coming from South America as the risk to the UK, which is what the reply from the noble Lord, Lord Davies of Oldham, to the Question from the noble Baroness, Lady Gibson, suggested. We pose a threat to them as well.