Anti-social Behaviour, Crime and Policing Bill

Baroness O'Loan Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, Clause 91 introduces a new discretionary ground for possession for offences connected with a riot. The existing grounds for possession for anti-social behaviour are discretionary and require that the anti-social behaviour must have occurred in the locality of the property. This means that thuggish behaviour committed against neighbours or in the immediate vicinity of a tenant’s home may currently be a basis for eviction.

However, similar offences likely to have a devastating effect on whole communities such as looting, or other riot-related criminal activity, committed by tenants further from their homes would not usually be taken into account. I do not think that that is right. It is important that people who wreck other people’s communities through riot-related offences should face the same consequences that they would if they carried out such behaviour in their own neighbourhoods.

It is not just the Government who are of this view. Following the 2011 riots, the e-petition entitled “Convicted London rioters should lose all benefits” received over a quarter of a million signatures, the second greatest number of signatories for any e-petition that has been submitted to the Government to date. That is strong evidence that the public want tough action to deal with rioters.

This clause seeks to make sure that that is the case by adding a new ground for possession into the Housing Acts 1985 and 1988 in respect of secure tenants and assured tenants respectively. Under the new ground, landlords will be able to apply for possession of a tenant’s property in England where the tenant or a person living in the tenant’s property has been convicted of an offence committed at the scene of a riot which took place anywhere in the UK.

Following concerns raised in Committee and by the Joint Committee on Human Rights, we gave a commitment to consider the amendments tabled at that stage by my noble friends, Lady Hamwee and Lord Greaves, which proposed that the new ground would apply only where the tenant and not a member of the household has been convicted of a “serious offence”, rather than any offence, as currently drafted.

Recognising the concerns that have been expressed, government Amendments 80A to 80F provide further reassurance that the new ground will apply only to the more serious cases of riotous behaviour. Amendments 80A, 80C, 80D and 80F provide that landlords would be able to seek possession under the provisions of Clause 91 only where the tenant or an adult member of their household has been convicted of an offence at the scene of a riot.

We have retained the application of the ground to the convictions of adult members of the household as we do not believe that adult perpetrators of serious anti-social behaviour or criminal activity should be able to escape consequences for their home simply on the basis that the tenancy is not in their name.

In addition, to address concerns relating to the possibility of minor offences triggering possession under this ground, Amendments 80B and 80D would restrict the application of the new ground to “indictable offences” instead of any offence committed at the scene of a riot as currently drafted. This means that convictions for less serious offences such as common assault and obstructing a police officer in the execution of his duty will not trigger possession under this ground. However, I emphasise our commitment to ensuring that we send a strong signal: if you get involved in a riot, whether it is near your home or not, there may be consequences for your tenancy.

With regard to the concerns raised by the Joint Committee on Human Rights that the ground amounts to a double punishment and may disproportionately affect children, it is important to note that the new ground is discretionary and that the court can grant possession only where it considers it reasonable to do so. This means that the court can take into account the circumstances of the tenant and other family members, including children, when deciding whether to grant possession. I should add that available evidence also indicates that landlords resort to eviction only as a last resort. In addition, these government amendments would provide additional safeguards in the Bill to ensure that whole families are not evicted under the new ground for the actions of a child during a riot. I would reassure the noble Baroness, Lady O’Loan— I am pleased to see that she is in her place—and the noble Baroness, Lady Lister, who have tabled Amendment 80G to remove Clause 91 from the Bill, that we expect the impact of the provision and the number of evictions, including those of families, to be very small over time. That is especially as I hope that we will not see any future occurrences of the disgraceful looting and rioting across England that we saw in the summer of 2011.

I hope that the House will agree that these government amendments respond positively to the concerns that have been expressed about this provision and that your Lordships will support the retention of Clause 91 in its amended form. I beg to move.

[Baroness O'Loan (CB)]

My Lords, Clause 91 as originally drafted added a new ground for possession under Schedule 2 of the Housing Act 1985 and Part 2 of Schedule 2 to the Housing Act 1988 so that, as the Minister has said, a landlord might apply for possession where someone living in the property has been convicted of an offence committed at the scene of a riot which had taken place anywhere in the United Kingdom. The Joint Committee on Human Rights, of which I am a member, has consistently stated that this clause should be deleted from the Bill. In the first instance the committee stated that it was unnecessary and disproportionate. It was also concerned about the potentially serious implications of this clause for family members and considered that it may disproportionately affect both women and children. The committee said that it amounted to a punishment rather than a genuine means of preventing harm to others.

I wish to set out absolutely the aggravated nature of riot offences. Living in Northern Ireland, I have long experience of the fear and the horror of riots. People who commit criminal offences must be pursued under the criminal law. To allow an offence committed anywhere in the UK, even if the conviction were to be on indictment only, to be grounds for eviction where there is a tenancy, is certainly to impose a second punishment on a limited group of people who do not own their own home and who have committed no offence, since the other members of the household have committed no offence. I should like to thank the Minister for meeting with me in December to discuss this issue, and for giving me the opportunity to articulate again the difficulties with this clause.

I note the amendments that the Government have now tabled and the fact that they make in effect two changes. The clause will apply only where an adult member of the household—someone living in the house—has been convicted of an indictable offence. That is to be welcomed because it limits the effect of the clause. It relieves from the threat of eviction the families of young people who may have fallen into bad company, but who have been dealt with for their criminality under the criminal law. However, that still leaves tenants and their householders subject to a possible double punishment for a crime committed either by a tenant or someone else who lives in the rented property, and no such double punishment can be applied to a private householder. The family of such a household will be put through the stress, fear and expense of fighting an eviction application. It will go on for months, and while they may well win at the end of the day, there will still have been serious disruption and expense and, above all, distress to the family. Can the Minister tell me whether there is a time limit on the use of a conviction as a ground for eviction? If a person was convicted in 2013, could that conviction be used in 2014? If he was convicted 2011 as a result of the London riots, could it be used in 2014?

Clause 91 would create the curious circumstance in which someone convicted of a riot offence in Edinburgh, Glasgow or even Belfast could be evicted in England and Wales but a person convicted in England and Wales could not be evicted in Scotland or Northern Ireland. The Government have offered no justification for this measure, nor is there any necessity for it, even in its amended form. In the Minister’s letter to the Joint Committee on Human Rights, the explanation for the Government’s amendments is that, in light of the Lords Committee stage debate, they concluded that it would be appropriate to place further safeguards on the face of the legislation. However, the Minister repeats the Government’s position that “this provision is intended to deter the sort of deplorable ‘riot tourism’ that we witnessed in summer 2011”. The Joint Committee on Human Rights states:

“In our view it is the job of the criminal law, not the civil law, to deter riot-related offences and to administer sanctions when such offences are committed. Nor do we consider the existence of judicial discretion to be a satisfactory answer to our concern about the disproportionate impact of eviction on other members of the household who have not engaged in such behaviour. We maintain our recommendation that clause 91 be deleted from the Bill”.

The justification for the current position under the Housing Act is that those convicted of rioting in their locality pose a threat to their local community and that, in order to protect that community, the person must be removed from it. This justification cannot cover the proposed extension of the ground for eviction—there is no link between the crime and the local area. As the noble Lord, Lord Paddick, a former deputy assistant commissioner of the Metropolitan Police, stated in Committee,

“the provision to order possession of a property when the offence has absolutely nothing to do with protecting neighbours, for example, from anti-social behaviour, is a step too far. It is politically motivated and is not driven by the needs of justice. Therefore, it should be no part of this Bill”.—[Official Report, 2/12/13; col. 62.]

The Government have sought to justify their proposals by stating that the threat of eviction is intended to deter those considering engaging in riot-related behaviour —but that is the purpose of the criminal law.

In Committee, the noble Lord, Lord Faulks, who is soon to take his place on the Front Bench, stated that he could not endorse the clause. He did not qualify that in any way:

“The courts have sufficient powers to deal firmly with offenders caught up in a riot … The criminal justice system—some would say ‘for once’—in general responded very well to what occurred”.

He also said:

“Those who committed offences during the riot on that occasion were dealt with speedily and firmly”.

He stated that he did not think it was “necessary or appropriate” to legislate in this manner,

“given all the other powers that exist elsewhere in the Bill”,

and concluded that,

“this clause is a step too far”. —[Official Report, 2/12/13; col. 60.]

In 2011, Wandsworth Council threatened to evict a Liberty client, Maite de la Calva, and her younger daughter, if her son was convicted of a crime committed during the riots in 2011. Her son had been arrested and charged during the disorder. He had moved out of his mother’s property earlier in the year, but she was still served with a notice by Wandsworth Council seeking possession, which stated that she was likely to have breached her tenancy agreement. The authority vowed to apply for a possession order evicting her and her daughter if her son was convicted. This was despite her contribution to the local area over the past three years: she was described as a credit to her housing estate by neighbours and spent her spare time volunteering with a youth charity and working with domestic violence victims. She had committed no crime herself and would not have faced that threat had she lived in a mortgaged house. Liberty represented her in challenging Wandsworth Council’s attempt to punish her and her daughter for her son’s conviction. Eventually the council was persuaded to back down, but not before considerable anxiety and suffering had been inflicted. If the eviction powers set out in the Bill are enacted, even as modified by the present government amendments, there will be many more cases just like this one and it is unlikely that the outcome in all of them will be as positive.

Removing a person and their family from social housing is unlikely to lead to less, rather than more, crime and anti-social behaviour. Dispossession will shift the problem elsewhere, creating new and greater problems for the individuals concerned and their families. Private housing may be unavailable and private sector rents are rising, partly as a consequence of the welfare reform measures. Temporary accommodation does not deal with the issue: it splits up families; it disrupts education and social cohesion; and the end result may well be that alternative accommodation becomes unaffordable for many families, leading to increased homelessness and destitution.

I ask the Minister to consider again the fact that the Joint Committee on Human Rights has consistently said that this clause is neither necessary nor proportionate; that it is not about protecting a local area; that it discriminates against those in public housing; and above all that it will create significant distress to people who have committed no crime.

--- Later in debate ---

Moved by

[Baroness O'Loan]

80G: Clause 91, leave out Clause 91

[Baroness O'Loan]

My Lords, I had expected to have the right to respond to the Minister on the previous amendment. I do not think that the relevant measure has been shown to be necessary, proportionate or in the interests of innocent victims. I beg to move. I wish to test the opinion of the House.

Anti-social Behaviour, Crime and Policing Bill

Baroness O'Loan Excerpts

Wednesday 8th January 2014 Lords Chamber

[Baroness O'Loan (CB)]

Can the noble Baroness explain precisely how judges are supposed to interpret a threat and a feeling of being threatened from the words “nuisance” and “annoyance”? Also the use of the word “threatened” would indicate a much higher threshold.

[Baroness Hamwee]

I would say because of the context of the Bill, the clear policy underlying it and the evidence that would have to be given. I have heard the exchange about hearsay evidence but a judge has still got to be convinced that it would be just and convenient, and therefore proportionate, as I understand it, to grant an injunction.

EU: Eurojust (EUC Report)

Baroness O'Loan Excerpts

Monday 4th November 2013 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I support the noble Baroness, Lady Corston. I have the privilege to serve on the European Union Sub-Committee on Justice, Institutions and Consumer Protection, which is chaired excellently by the noble Baroness.

The Government have made it quite clear that the current legislation on Eurojust represents a,

“positive model of cross-border co-operation”.

The Government have stated that it is their intention to seek to opt back in to the existing legislation on Eurojust following the decision to exercise the 2014 opt-out of 130 EU police and criminal justice measures adopted before the treaty of Lisbon entered into force in 2009.

When the sub-committees were considering the general issue of the opt-out, Eurojust was one of the measures on which there was a high level of consensus in favour. Eurojust provides judicial co-ordination meetings, judicial co-operation agreements with third countries, office facilities, the facilitation of mutual legal assistance agreements, the acceleration and execution of European arrest warrants and the funding of joint investigation teams with the accompanying translation costs. As the Government have recognised, all of these are of considerable value to the United Kingdom. In these circumstances it is very clear why the Government wish to opt back in to the existing arrangements.

The DPP, in evidence, to the committee said that Eurojust costs the UK just £360,000 per annum and costs would be much greater were these arrangements to be the subject of individual bilateral liaison between magistrates in each country. Those of us who were involved in the process of criminal investigation prior to 2002 are aware of how very much longer all these things took prior to the establishment of Eurojust. We know that sometimes things took so long and became so complex that criminals were able to avoid justice. We must also bear it in mind that even if criminals are ultimately apprehended, the ancient maxim that justice delayed is justice denied still applies.

The committee in its 23rd report of the 2003-04 Session, stated that Eurojust was,

“a model of how to make progress in an area where the differences between national jurisdictions are so great that it would be unrealistic to aim for harmonisation. It is also an example of the sort of effective practical co-operation that an EU agency can provide”.

The Government’s concerns have been articulated very clearly by the noble Baroness, Lady Corston. They are threefold: ramifications for fundamental rights; concerns in relation to the governance and management structures of Eurojust; and the nature of the extended powers to be given to national members. The decision is imminent and the sub-committee to which I belong has recommended that we should opt in. The real problem with Eurojust is well recognised. It is the extent to which the new proposal interacts the European Public Prosecutors Office proposal with Eurojust. I understand the reservations in relation to the EPPO. They are shared by a significant number of other states. As we say in our report, the UK will not be alone in opposing the EPPO.

The UK needs to be at the table to participate in these fundamentally important negotiations in the Council. We need to ensure that our voice is heard in these debates, particularly in support of those other members who wish to support less radical change to Eurojust, as the UK does. These will be complex and important arrangements. Ultimately it is likely that the current Eurojust arrangements will change. If we are not part of the negotiations, we will not be able to influence the outcome as effectively as if we were at the table. It is not impossible, as we say in the report, that if the UK fails to take its place at these negotiations, they will proceed. Eurojust will change, and the UK will find itself unable to opt back in to the existing arrangements, leaving us at a significant disadvantage in the fight against crime. The existing Eurojust will disappear, and we will not have brought to bear our very considerable influence on the creation of the new Eurojust. This can only leave the UK at a disadvantage.

As we contemplate the fight against crime and terrorism across borders, we have good cause to ensure that co-operative arrangements are as comprehensive as possible, while still retaining and maintaining our national independence. In Ireland last night, a massive bomb was intercepted by the Irish police. It was destined for the north. It would have caused carnage. We have increasing levels of evidence of more militant views in many communities, with the creation of many murals glorifying what they called the armed struggle. We have to consider the concerns we know exist in Northern Ireland about the possible effects of the current opt-out proposals on the protection of security in these islands. We have also to consider the ramifications of the interdependence between organised crime and terrorism in the context of this proposal. For example, we have two individuals who are subject to TPIMs currently on the run. They are subject to TPIMs because they were regarded by a judge as a threat to national security.

We cannot revert to the times when we were dependent on bilateral arrangements and individual processes took months, if not years. If we opt out of Eurojust under the protocol 36 arrangements and find ourselves unable to opt back in because things have moved on, that may well threaten the coherence of the whole package which the United Kingdom will present to the Commission when it seeks to opt back in to the various measures. European arrest warrants, the other 34 measures and, indeed, the other measures which have been recommended for inclusion in the package are interdependent. The Government stated in their response to the 13th report:

“Europol currently provides support in over 280 operations involving UK law enforcement”.

If we opt in, we can negotiate so as to secure the removal of the powers to direct national law enforcement agencies to initiate investigations or share data. We can influence other states to achieve an outcome acceptable to the UK. We will definitely do so more effectively if we are sitting at the table than if we are on the sidelines watching, seeking ultimately to rejoin a Eurojust on terms for which we have not argued and which ultimately we may even be unable to accept.

We put our whole protocol 36 situation at risk if we do not opt in. Eurojust represents great value to us. We must ensure that we have a voice in the ongoing debates, and I ask the Minister to consider again the decision the Government have made.

[Lord Rowlands (Lab)]

My Lords, if only I could improve upon the powerful and compelling case that the noble Baronesses, Lady O’Loan and Lady Corston, and the noble Lord, Lord Hodgson, have made on our committee’s report. This time last week, we had a consensus on our report on the EPPO. As I understand it, we have a consensus of a rather different kind tonight: a consensus of two Front Benches opposing our report. I find that all the more puzzling given the events of the past week or two.

As the noble Lord, Lord Hodgson, said, since we wrote this report, the context has changed. We have seen a very significant and “important”—in inverted commas—rebellion across a number of European Parliaments to the draft proposal on the EPPO. It was our case that if the Government joined in the debate and discussion on Eurojust, they would find enough allies to change and alter that report effectively. Surely the evidence of the past week or two has been that there are such allies and that if one engaged in an active and proactive way on this measure, one would find enough allies to change or transform the report itself. Our case has been strengthened by the events of the past week or two, and therefore I am puzzled if both Front Benches for some reason oppose the conclusions of our report.

We all accept the value of Eurojust. The Government accept the value of Eurojust. They want to opt back in to Eurojust under the opt-in proposals. We all support that opt-in to the system. I certainly share the Government’s concerns about the existing draft proposal. Almost all those concerns are about the interrelationship between it and the proposed draft for the EPPO. If those fall—if, in fact, the Commission is going to have to withdraw or revise its proposal—surely there will be a consequential fallout in the draft Eurojust proposal. Will the Minister bring us up to date on what has happened since last Monday, when there were enough reasoned opinions across Europe to mean that the Commission will have to review it? What has the Commission intimated? It has suggested that it is going to do so, and it accepts and understands the voices of concern. If it does that, does it not also have to review and almost withdraw this proposal because they are totally interlinked? A portion of the Eurojust draft is related to the proposed public prosecutor’s office. Will the Minister tell us whether, if the Commission has to review the EPPO, it will also probably have to undertake some kind of review of this draft?

In this case, we have a compelling case for joining in the negotiation because we now have a good clear view that we could affect those negotiations in a very positive way. As other members of the committee have said, one of the things that swung me in favour of our report—and I was sceptical at the beginning because I understood and appreciated the Government’s concerns—was that we could influence this because we sensed there would be a lot of other supporters. The other reason why I supported it was that I looked down the road and thought that a bizarre situation could happen in which the Government opt in to the existing measure and then find that this measure has been revised and it belongs to an existing measure which down the road may well be of a different kind, and they have opted out of that. I think that would cause a very puzzling and bizarre situation in the relationship between the United Kingdom and the Eurojust system.

There is one thing on which we surely have consensus: we are in favour of Eurojust and we are in favour of the United Kingdom’s participation in it. Therefore, I beg the Minister to tell us what has happened since last Monday and whether the impact of what happened in the past week or two means that the Government should rethink their position on this issue and should at least keep an open mind on the question of opting in, negotiating and influencing what I think is a very important organisation.

Anti-social Behaviour, Crime and Policing Bill

Baroness O'Loan Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I congratulate the noble Lord, Lord Paddick, on his eloquent and humorous maiden speech. We look forward to hearing much more from him.

I welcome many of the provisions of this legislation, in particular those in relation to forced marriage, dangerous dogs and the additional powers given to the IPCC. In particular, and most importantly, I welcome Clause 123, which provides for access to information—a critical tool for an investigator. I also join with many of the comments that have been made in relation to anti-social behaviour and the deficiencies of the Bill as currently drafted. I also draw attention to the 20 or so recommendations and observations of the Joint Committee on Human Rights, to which I belong, in relation to that section of the Bill alone.

I will speak on the issue of compensation for miscarriages of justice. Clause 151 provides that compensation will be payable for a miscarriage of justice,

“if and only if the … newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence”.

The UK has a long and proud history of the presumption of innocence in criminal matters unless guilt is proved beyond reasonable doubt. The European Convention on Human Rights, which was drafted largely by United Kingdom representatives, maintains this presumption in Article 6(2) of the Convention. It is one thing to be able to prove that there is reasonable doubt as to the safety of a conviction, and even that will normally take years, during which the person wrongly convicted will serve a prison sentence. The CCRC process and the process of the Court of Appeal do not involve a retrial. The person seeking to overturn a conviction is often in a very lonely place—it is not an easy process. The Minister has told us that Clause 151 is intended by the Government to bring much needed clarity—as the noble Lord, Lord Faulks, said, it does. However it is, in fact, a total change in the law. Never previously has the victim of a miscarriage of justice had to prove innocence beyond a reasonable doubt.

As I have said, the business of disproving guilt is not easy. A court may, as the Minister in the other place stated, determine that a person’s conviction is overturned; for example, because DNA evidence comes to light showing that they could not have committed the offence. That may seem a very simple example, but it is not. In many cases, both here and in Northern Ireland, there will be people convicted long before DNA testing became available, where the evidential material, which may well have contained exculpatory DNA evidence, has been destroyed for a variety of reasons. Most commonly, evidence such as clothing was destroyed because blood contamination was regarded as constituting a health risk. That should not happen now, but the cases in which there is a referral to the Court of Appeal by the CCRC are not recent cases, and they are only the most serious ones. People may also be convicted on what turns out to be false expert evidence, as in the cases of parents whose children died suddenly and who were wrongly convicted. If it transpires that the evidence is not reliable, the conviction will be overturned. That will not prove the innocence of the mother or father. There are many other reasons why a person may be incapable of proving their innocence to the standard required by this test. Obviously I cannot give examples of all of them in the time allowed.

If we legislate in the way suggested by the Government, we will create two types of “not guilty”. There will be those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted. Since they cannot prove their innocence, while they may assert that they did not commit the offence they will not be able to claim compensation, and it is inevitable that some people will conclude that they are not innocent because they are not innocent beyond all reasonable doubt.

In a number of cases people were convicted on evidence fabricated by police officers. I think, for example, of a schoolboy in his late teens who was convicted of murder on the basis of a confession and other evidence secured as a result of wrongful behaviour by police officers. The boy in question did not commit the murder, but could not prove that and served over a decade in prison before being released. His conviction was overturned, but that evidence, which should never have been presented to the court, does not prove his innocence. It is something completely different to ask the victim of a miscarriage of justice to prove his innocence.

Such victims would effectively have to reinvestigate their own case in order to prove their innocence. In many cases they would not get the right of access to documents, to question witnesses, to get expert evidence checked, or to get access to retired police investigators, who would not assist them. Have the Government considered how such a person is supposed to satisfy that test, which is not the test required by the Court of Appeal?

It has been pointed out that had this clause been law at the time of the cases of the Birmingham Six, the Guildford Four, the Maguire Seven, the Cardiff Three and Judith Ward, they would all have been highly unlikely to meet the test. In criminal law people do not have to prove their innocence; the prosecution has to prove their guilt beyond reasonable doubt. When the state has held that a person was wrongly convicted, years after the event, it is very likely that it will just not be possible to marshal the necessary evidence to prove innocence.

Compensation is given for the wrongful conviction and for the time served in prison. If a court declares a conviction to be unsafe, the person who is released will have to try and rebuild his or her life. They will usually have spent long years in prison. They will have lost their opportunities to be educated, marry, have children, build a life and contribute to society. Above all, they may have lost contact with their family, or their relationships may have broken down to the extent that they are not repairable—and all that because they were wrongly convicted. Now the Government propose to remove the right to compensation from anyone who cannot prove their innocence beyond reasonable doubt. This matter was discussed briefly in the other place, and amendments were tabled that sought to address this. There was some debate, but it was decided in the end to leave the matter to this House. They said,

“leave it to the other place to find the right answer”.—[Official Report, Commons, 15/10/13; col. 610.]

The Minister told us that there are two to four cases a year in which compensation is paid. Can he tell the House whether that number covers England, Wales and Northern Ireland, or whether it is England and Wales only? If it does not cover Northern Ireland, can he give us the Northern Ireland figures? Can he also tell the House how many unsuccessful legal challenges there are each year? I suppose that I am really asking the Government, “Is this really mischief which requires to be remedied through legislative change, or is it something that will damage forever the reputation of law in the United Kingdom?”.

EU: Police and Criminal Justice Measures

Baroness O'Loan Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Baroness O'Loan]

My Lords, I speak as a member of the sub-committee of the European Union Committee and as one who participated in the inquiry that resulted in the 13th report. I do not speak on behalf of the committee.

It is perhaps desirable not to proceed with undue haste in making a decision on this matter. No decision is required until May 2014. The Government are arguing that they need the additional time for negotiations, but it might be wise to contemplate the fact that, as other noble Lords have said, some of the consequences of the opt-out, if matters proceed as indicated, may be less than favourable for the United Kingdom. If the decision is made, on 1 December 2014 the Court of Justice and the European Commission will have no powers in respect of these matters over the UK, but the pre-Lisbon measures will remain in effect in the other member states. If the decision was made, then until—or perhaps unless—we rejoined we would have no access to a number of processes and facilities that expedite the fight against crime and terrorism.

We would cease to have access, as has been said, to the European arrest warrant. We would cease to have access to Europol, led by Rob Wainwright, who has been described by the Home Secretary as doing a very good job as director. We would lose access to the EU judicial co-operation unit, which costs just £360,000 a year and provides centralised facilities for liaison in The Hague. Instead, we would have to have bilateral arrangements with the judiciary in each member state. We would lose our capacity to be involved in joint investigation teams. The Government told the committee’s inquiry into the EU internal security strategy that they considered these joint investigation teams to be a valuable tool, and the Government supported the Commission’s plan to expand their use.

I could go on and on describing the benefits that we would lose if the Government were to opt out, or even to fail to opt back in within a limited period. The Home Secretary said that the Government are acting on the grounds of principle, policy and pragmatism in making this decision. The EU Committee took extensive evidence, as noble Lords have said, from a wide range of witnesses in the course of the inquiry. Overall, the response was one of massive concern about damage to the UK’s interests. I refer the House to paragraph 157 of the 13th report, which states:

“The Lord Advocate told us that he would have ‘real concerns’ if the UK were to opt out of the EAW and the DPP told us that to do so would result in a poorer deal for victims of crime. ACPO … emphasised the significant percentage of EU nationals from other Member States that were arrested in London each year and suggested that it would be more difficult to return them to their Member State of origin”.

It also suggested that,

“withdrawing from the EAW would be a mistake and could jeopardise justice and public safety … the President of Eurojust told us that it would make it harder for the UK to tackle cross-border crime”.

JUSTICE and Justice Across Borders stated that,

“criminals would exploit any differences that arose between any different extradition arrangements … and others suggested that it could result in the UK becoming a ‘bolt-hole’ or ‘safe haven’ for criminals … organised crime or terrorism”.

The report concludes that the European arrest warrant is the single most important pre-Lisbon measure and that it is inevitable that the extradition process would become more protracted and cumbersome, potentially undermining public safety.

No system is perfect. International co-operation on criminal justice measures will always require amendment to make them work as well as possible. Even the criticisms that have been made of the European arrest warrant relate mainly not to the warrant itself but to the consequences of people being sent to certain countries in terms of long periods of pre-trial detention et cetera.

Withdrawing from protocols or exercising the opt-out will not enable us to have any influence to improve matters in that respect. In his review of the operation of the European arrest warrant in 2011, Sir Scott Baker concluded that it had improved the scheme of surrender between member states and that broadly it operates reasonably well. He made recommendations and the Government committed to work with the Commission and other member states to improve the situation.

At a time when we are fighting international terrorism with all its devastating consequences for individuals, national economies and the general global situation; at a time when international organised crime is growing rapidly and when levels of people trafficking, smuggling and white collar crime represent a significant threat, there can be no logic in withdrawing from existing arrangements that work in the interests of the UK, even if we hope to rejoin on our terms—something which may not be available to us.

In all the evidence we took as a committee, very few witnesses drew our attention to any specific measures that they considered to be detrimental. The committee concluded:

“We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures … As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them”.

We need an extradition process. We need to continue to have access to Europol and Interpol—as the noble Lord, Lord Lawson, says—and other national and international intelligence-handling operations so that we can become aware of suspected threats of crime or terrorism, and so that we can act accordingly. We need the benefits of joint investigations with all their logistical support mechanisms. We need to be able to take advantage of these measures. The Government of course recognise this and state that they will opt back in. However, it will not necessarily be as simple as that. As the committee stated in paragraph 223 of its report:

“While in our discussion with the Commission we found no inclination on their part to obstruct or make the process of opting back in difficult, seeking to rejoin particular measures would not necessarily be automatic or straightforward. Either the Commission, or where appropriate, the Council, may seek to impose conditions on such requests”.

The Home Secretary, in evidence to the Committee, accepted that the Commission may make it a requirement that the UK rejoin or opt into a particular measure to preserve the coherence of the totality of the policing and criminal justice measures. The Commission made clear in its evidence that it considers coherence to be a matter of paramount importance.

All this is happening in the context of debate about the current European arrangements and our membership of the European Union. Other noble Lords have spoken quite passionately about that on occasion.

For Northern Ireland and for the UK as a whole, the issue of continued involvement in these measures is critical. There is still a terrorist threat from republicanism in Ireland, north and south. There is also a threat from international terrorism. Today, according to the Government, the situation is that in mainland Britain an international terrorist attack is a strong possibility, and in Northern Ireland a terrorism-related attack is possible but not likely. In Northern Ireland, an international terrorist attack is a strong possibility and a Northern Ireland-related attack is highly likely.

It may be that the Government are relying on the interests of other member states in our participation in these arrangements to force Commission acceptance without undue conditions on the UK’s request to opt back in. I have heard and seen extensive concern being expressed both internationally and within the EU about what the UK is doing and its potential damage not just to our country but to other countries’ interests. However, while the Commission will make the majority of the decisions, the Commission of course comprises commissioners from member states who are required by virtue of their position to act in the interests of the European Union rather than in their national interests. Notwithstanding that, it would be unwise to anticipate that the Commission will simply accede to requests for re-admission. It is surely necessary to ensure that our anti-terrorist, crime prevention and detection operations are as strong as possible.

The biggest number of European arrest warrants to the UK over the period from 2009 to 2011 were from Ireland, the Netherlands and Spain. In Ireland and Spain there are a significant number of terrorist incidents.

[Lord Taverne]

Five minutes.

[Baroness O'Loan]

If noble Lords will just bear with me, I am nearly done. Of all surrenders to the United Kingdom, 70% were from those three countries. I am not scaremongering in drawing these matters to your Lordships’ attention. I have lived with terrorism for 36 years. I have worked in many countries seeking to make good the damage from it. The evidence that the committee on which I was privileged to serve received was both compelling and overwhelming. Let the Government take more time to respond and to contemplate the consequences of the proposal. It is never wise to act when one does not have a full understanding of the possible consequences of such action. We do not yet know the consequences of what the Government are now proposing.

Justice and Security Bill [HL]

Baroness O'Loan Excerpts

Tuesday 19th June 2012 Lords Chamber

[Baroness O'Loan]

My Lords, having had some experience of matters relating to national security involving many of the considerations inherent in this Bill, I absolutely recognise the importance of protecting intelligence sources, intelligence methodologies and those agents who have the complex and often difficult task of running the sources who are often engaged in the very issues on which they provide intelligence.

Such activity is of course regulated but much of it occurs in real time and in situations in which the Security Service necessarily exercises a degree of discretion —for example, about the involvement of sources in crime or terrorism. The noble Baroness, Lady Berridge, referred to where things go wrong. In Northern Ireland, there is a body of evidence about such circumstances. Examples are sources being funded to make trips to other places to buy arms and munitions for the purposes of terrorism, and sources who admit to murder not being prosecuted for those murders because the important thing is to retain their services as sources, the consequence being a lengthy career in serious crime, which could have been prevented. A balancing of the public interest, or even the administration of justice, with their ongoing activities might have led to different state action from that which occurred.

I mention that because it is important that, as far as possible, there should be no provision that enables the Government to withhold intelligence or other sensitive information relating to national security in a manner that prevents a litigant asserting and proving his case if our current situation with regard to the operation of government and the rule of law is to be maintained and, hence, our national security is to continue to be protected. Introducing further limitations to judicial oversight and involvement, as proposed in the Bill, cannot be welcomed where alternative measures can be taken that will better serve the interests of both openness and justice. In that context, it might be useful to consider the references of the noble Lord, Lord Grenfell, to the disclosure judges and their activities in Northern Ireland.

There are mechanisms for the accountability of the Security Service and anti-terrorist policing, to which we have reference in the Bill, but I think that, with respect, the current arrangements cannot inspire great confidence because of the very limited resources and opportunities for access afforded to those who are charged with the responsibility. Great atrocities, both here and in the United States, have led to calls for examination of what happened—for example, with the Omagh bomb 14 years ago or with 9/11. The reality is that the intelligence services do not operate alone; they operate with the police and other statutory agencies. Sometimes there has to be a public inquiry, and we have seen several in Northern Ireland. In such circumstances, there will be consequential disclosure and such inquiries may well be in the interests of national security, so we cannot start with the assumption that everything has to be protected.

I welcome the exclusion of inquests from the Bill. However, I should like the Government to explain why inquests should be excluded but civil actions for damages against the Government taken by the loved ones of those who have died should be subject to the possibility of a CMP. The response cannot simply be that Article 2 does not apply to civil actions. The perception is that the effect of that provision is that the Government might be influenced in their decision to withhold information because to disclose information would be very costly in terms of the damages that they might have to pay. Of course, the claimant may not know the extent of wrongdoing which may have led to death or serious injury and may therefore be inclined to settle for a sum which does not reflect the extent of wrongdoing. I heard the Minister say that without CMPs the Government would have to settle cases which they could otherwise defend because they must protect national security. It is possible that the perception outside your Lordships’ House will be that the Government are creating, perhaps unwittingly, a damage limitation mechanism exercised by virtue of this provision.

It is important in dealings with other Governments that our Government should not become complicit by omission or commission in any wrongdoing by those Governments. The removal of people to places where torture and inhuman treatment is likely on the basis of security intelligence is risky, to say the least. I have referred previously in this House to the case of Maher Arar, who was transferred by the Americans to Syria on the basis of intelligence obtained by torture. Mr Arar spent a year in Syria tortured by the Syrian authorities before he was released to return to his homeland of Canada—the Syrian Government and the Canadian Government both acknowledging that he had had no involvement at all in al-Qaeda. There are lessons for us in such cases.

We must have proper arrangements for the transmission of intelligence between countries in the interests of each country’s national security, but we must also acknowledge that countries have a wide moral responsibility to share intelligence to protect life. It is important that the United Kingdom does not bow to threats of non-sharing but, rather, asserts clearly the integrity of the judiciary in the United Kingdom and the fact that there has been no breach of security and that our legal processes are competent to deal with such matters without the introduction of blanket bans such as might emerge from the application of Article 13.

Central to the rule of law in the United Kingdom are presumptions of openness and fairness. It is, in part, confidence in the rule of law which allows us governance. The Select Committee on the Constitution said in its third report:

“This is a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice”.

Those basic principles should not be diminished—and that is what the Bill will do—unless it is absolutely necessary. The Supreme Court in Al Rawi concluded that such measures would require “compelling evidence”. The necessity and proportionality of the measures in the Bill must be considered if your Lordships are to decide whether to approve the Bill or its individual clauses.

If we look at the response of those with significant experience in the area, we see that the Joint Committee on Human Rights, of which I am now a member, states that, even with special advocates, CMP,

“is not capable of ensuring the substantial measure of procedural justice that is required”.

It does not accept that replacing PII with CMP is justified. Special advocates have said that CMPs are inherently unfair: they do not work effectively and they do not deliver procedural fairness. The Court of Appeal, commenting on the special advocates procedure, said that even it is “inherently imperfect” and,

“cannot be guaranteed to ensure procedural justice”.

Justice has observed:

“There is nothing in the Bill to address unfairness”.

If we examine the proposed CMP, we see that much of the judge’s discretion and authority, which currently exists under the PII procedure, is negated by the CMP. The power all lies in the hands of the Secretary of State, who can apply for a declaration and then make the applications. The court must grant the application. The court may not even consider whether a PII procedure would be a better alternative. Once that is done, there will be consideration of individual pieces of evidential intelligence, but the reality is that the special advocate procedure does not permit full challenge of the material presented. Once the special advocate has seen the material, he can have no further discussion with the litigant; he has no responsibility to the litigant. That would be fine were it not for the complexity inherent in the assessment and examination of intelligence. The noble and learned Lord, Lord Kerr, stated most compellingly in Al Rawi—this has been referred to repeatedly—

“To be truly valuable, evidence must be capable of withstanding challenge … evidence which has been insulated from challenge may positively mislead”,

a court. Can the Minister confirm how the Government propose to ensure the necessary and full examination of national security material in the absence of such great judicial involvement in scrutiny?

Nothing in the CMP procedure would equate to any attempt to carry out the balancing of interests in the administration of justice exercise, which was developed in the Wiley judgment. The Constitution Committee stated that it is,

“difficult to see the justification for removing the Wiley balancing exercise”.

Will the Minister consider the introduction of some provision to mitigate the inherent unfairness of the Bill, whether by way of disclosure of material to legal representatives or in redacted form, as suggested?

I support the remarks of the noble Lords, Lord Pannick and Lord Lester, about the effect of the Bill on the Norwich Pharmical procedure. There continues to be no definition of national security—something which alternatively mystifies and occasionally benefits those who are required to make decisions in the interests of national security. It is also important to bear in mind that nothing is absolute. Even the identity of sources may be revealed, as was clearly demonstrated in the comments of Lord Chief Justice Carswell in the Northern Ireland case of Scappaticci. He stated, in the context of the “neither confirm nor deny” policy, that the Minister,

“can depart from the NCND policy … if there is good reason to do so to meet the individual circumstances of the Applicant’s case.

He continued—this is profoundly important for us in our law-making function—

“A decision maker exercising public functions who is entrusted with a discretion may not, by the adoption of a fixed rule of policy, disable himself from exercising his discretion in individual cases”.

We must accept the reality that there are cases in which the general rules about non-disclosure of intelligence material will have to be disregarded. It happens now, for example, if somebody is murdered and a source can give vital evidence about the murder but revealing the source would compromise him as a source. This will happen and he will then be repatriated to a new existence—something which he may not find particularly palatable, but it deals with the problem and with the requirements of justice. It is also the case that intelligence-gathering methodology has evolved. What might have been required to be protected even in 2006 may no longer require protection in 2012. It may be that the Minister will assure me that such consideration will always be part of the making of decisions about whether to apply for a CMP or whether simply not to make an application.

I seek assurances from the Minister on the provision in Clause 13 that,

“disclosure is contrary to the public interest if it would cause damage … to the interests of … international relations”.

There is no definition of what this damage might consist of, or of what objective criteria should be used to determine whether disclosure would cause such damage. There is a very clear proportionality and human rights issue here. Issues of the protection of national security are not new. We have long been engaged in battles to preserve and protect our national security, and I use that term in its widest sense. Procedures for dealing with the problem have evolved in a very measured way and the PII system is probably a very good example in this context.

Finally, why did the Government choose not to put PII procedures on a statutory basis, as many have recommended, in an enhanced form but, rather, to move towards the extension of the CMP, which has been described in such negative terms by so many of great distinction who have served this country so well? At this point, I endorse the suggestions made by the noble Lord, Lord Macdonald, regarding the introduction of a statutory PII process with the possibility of, in very exceptional circumstances, a closed material process. This would surely meet the objectives.

Protection of Freedoms Bill

Baroness O'Loan Excerpts

Tuesday 8th November 2011 Lords Chamber

[Baroness O'Loan]

My Lords, there is much to be welcomed in the Protection of Freedoms Bill. Issues such as the modification of the rules relating to powers of entry and the new rules on biometric material, including the requirements for the destruction of certain DNA samples, are important. As one who has had responsibility in the past for the destruction of DNA samples, I would ask the Government whether there is an intention to provide also for the destruction of the records which relate to those samples, because we discovered that this was an adjacent need.

I welcome the disregarding of convictions under Part 5, Chapter 4. I share the concerns articulated by the noble Baronesses, Lady Hamwee and Lady O’Neill, and the noble Lord, Lord Bew, in relation to Clause 100 and the freedom of information provisions for data sets.

I would like to endorse the many comments that have been made in relation to the protection of children under Part 5. There are concerns about the extent to which existing protections for children may be reduced by the exclusion of volunteers working, for example, in classrooms, sporting organisations and other supervised groups where the contact may be frequent and ongoing. Those are very important contacts because they help children, but they can also be used by abusers to build a relationship which may result in harm to children. The question that I have been asked is whether the proposed arrangements will, for example, permit an adult who has been barred from taking up a regulated post to volunteer for an unregulated activity? Are the Government satisfied that the proposed arrangements, which would place an individual on a barred list only if they have been, will be or are likely to be engaged in regulated activity, adequate? Will the result of this be that concerns about those not in regulated activity cannot be shared with the ISA?

The second area to which I wish to draw your Lordships’ attention relates to Part 2. The Regulation of Investigatory Powers Act deals with a range of investigatory techniques, including interception of communications, access to communications data, directed surveillance and intrusive surveillance, such as placing bugs in homes and cars. These techniques are widely used by a range of bodies.

I welcome the introduction of Clauses 29 and 34, providing for a code of practice for the development and use of surveillance camera systems and the creation of the Office of Surveillance Commissioners. The commissioner will have the responsibility to encourage compliance with the new camera code, review the operation of the code and provide advice about it. However, that is a very limited remit. There appears to be no provision for complaints about inappropriate use of surveillance cameras. There is currently an investigatory powers tribunal that deals with complaints under the Regulation of Investigatory Powers Act. It has received 1,120 complaints in 10 years and has upheld only 10. Five of the 10 were upheld in 2010 in respect of members of one family who complained about unlawful surveillance by a local authority. In only six other cases in 10 years has surveillance been found by the tribunal to be unnecessary or disproportionate. This is in the context of some 2.7 million surveillance decisions.

Clause 37 is an attempt to regulate the use by local authorities of surveillance powers by requiring the authority to seek judicial consent for such activity. The Minister articulated the disproportionate use of such powers in his opening address. It is right that there should be a requirement for judicial authorisation. It has been suggested that the police and other public authorities should be subject to a similar control mechanism following the revelations of very long-term surveillance by the police in the context of public protests and campaigns.

Clause 37 gives the Secretary of State power by order to require judicial authorisation for surveillance by other public authorities. The Regulation of Investigatory Powers Act already requires a complex process for authorisation and discontinuance of the use of directed surveillance. There is a very significant problem that lies not in the authorisation process, which requires significant thought, process and decision-making both to initiate and terminate surveillance activity, but in the mechanism created under RIPA for the regulation of surveillance activities. That process was described by the president of ACPO as,

“no longer sufficient to secure the confidence of right thinking people that such interference with citizens' rights (with its foreseeable collateral intrusion on many) is appropriate”.

There is a risk that when Parliament creates regulatory structures, it assumes that the job is being done. That is perfectly legitimate. However, changing circumstances may create an environment in which regulation becomes ineffective.

I will leave aside the operation of the Interception of Communications Commissioner and the Intelligence Services Commissioner. However, I will refer to the regulation of police activities that are overseen by the Office of the Surveillance Commissioner. The office comprises 26 people, including administration and support staff. They regulate, on an annual basis, the activities of some 60 organisations, including all police forces. On a biannual basis they examine some 25 organisations, and on a triannual basis they examine a further dozen authorities and more than 430 local authorities in England, Scotland and Wales. They are responsible for at least 500 organisations, some of which employ tens of thousands of people and have used RIPA powers on millions of occasions over the past 10 years.

The effective use of specified investigatory powers is critical to the fight against serious and organised crime. These powers have enabled some of the great triumphs of policing. Surveillance is a profoundly important tool. Properly used, it can result in the prevention and destruction of criminal activity, and the successful investigation leading to prosecution of crimes such as drug and people trafficking, money laundering and murder. The specific nature of the techniques and processes are rightly protected. However, because of the nature of the powers and the work in which officers engage when using them, there is international recognition of the risk of the corruption of those officers.

The regulatory process, among others, must be capable of acting as a check to the potential for such corruption, with all its attendant risks, by auditing the use of regulated techniques. I have seen situations in which RIPA was not complied with, despite the existence of extensive police command structures and the Office of the Surveillance Commissioner and its inspectors, resulting in the ongoing commission of serious crime by those being paid as informants by the state. In his annual report for 2010-11, the Chief Surveillance Commissioner indicated clearly that he had concerns about how the system was operating. He stated:

“I have commented in previous reports that there appears to be an over-reliance on the capacity of the OSC to examine authorisations. I remain concerned that my limited capacity is misappreciated ... My inspection capability is limited. The sample of documents which can be examined is small and the inspection can only be regarded as a ‘snapshot in time’; it is not an indicator of trends … In order to achieve a reduced budget for the financial year 2011-12 I have reluctantly reduced by capacity by one Inspector”.

He had seven inspectors to do all these inspections. Now he has one fewer. He has also reduced the secretary post and downgraded a further post. He states:

“My capacity has always been limited and I wrote to the Home Secretary to explain the impact of reducing my budget ... I recognise the severity of the country's financial situation but a reduction of nine percent has serious operational repercussions in a tiny organisation”.

This organisation has responsibility for protecting the freedoms of people in this country. The Bill presents an opportunity to address these issues.

I suppose my question is, “Must we wait until there is another scandal, as there inevitably will be?”. I would like to endorse the suggestion of the noble Baroness, Lady Doocey, that it would be possible to place the office of Surveillance Commissioners and the Commissioner for the Retention and Use of Biometric Material in the Office of Surveillance Commissioners, thereby avoiding the creation of two new quangos in a term in which we are dealing with the Public Bodies Bill and also ensuring the economies of shared services. Could the Government also make a decision to review the office of the OSC and of the Investigatory Powers Tribunal and in the interim to enhance the budget, so that these regulatory processes will more effectively enable the ongoing protection of the country?

Police Reform and Social Responsibility Bill

Baroness O'Loan Excerpts

Wednesday 20th July 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, my noble friends on the Front Bench will be relieved to hear that I do not rise to support Amendment 3, particularly in the light of the wise words of the noble Lord, Lord Dear. Even as the person in this House who probably has more experience of business management than any other noble Lord, I do not have an answer to the question asked by the noble Lord, Lord Harris of Haringey. However, I know that if there is sufficient consensus about the need to do something different, a way to do it can usually be found. I hope that that will be borne in mind.

My main purpose in rising is to support my three noble friends from this side who have made three basic points. Can this Bill possibly have taken into account what has happened in the past two weeks? The answer is clearly no. Do these amendments, or anything in the Bill, take account of those developments? The answer, presumably, is no. Do I think that we should make a lot of trouble today as a result? My noble friends will be relieved to hear that my answer is no. However, the Government now have at least seven weeks to think further in the light of what the Commons thinks about our amendments. They should use that time to consider whether what is now in the Bill is entirely appropriate given the recent experience which has not yet been fully digested or taken into account. I hope that my noble friend will at least be able to give me an assurance that that is not ruled out.

[Baroness O'Loan]

My Lords, I support the amendment of the noble Lord, Lord Hunt. We have to revert to what is happening to policing at present. We cannot make decisions without focusing on those issues. As I have said previously, the reality is that the police are fighting many battles on many fronts, particularly in the context of terrorism and organised crime. We have very serious problems internationally, but more than that the police are operating in a context of serious economic instability across the world. We all know that the almost inevitable effect of economic instability is a rise in the levels of crime. Opportunities are presented by this situation, which exists not just in the United Kingdom but in other countries. The questions around the model of a police and crime commissioner on which the Government are clearly set, which is based on the United States model but does not have the protections afforded by that model, are not answered by the amendments which the Government have tabled. Such a model will inevitably cause problems such as have been experienced in the United States where chiefs are sacked by mayors at regular intervals. This is accepted as a political reality. They then move from major city to major city to run other forces, which leads to huge instability.

The reality for the people, too, will be that if a Tory, Labour or Lib Dem police and crime commissioner is elected, there will inevitably be a perception among the public that the policing will be delivered in accordance with that party’s policy. No matter what you try to tell them, that will be the perception. That perception will inevitably lead to distrust in some areas of the country. There is a very clear need to focus on the issues raised in the amendment of the noble Lord, Lord Hunt, and in particular to place a statutory obligation on police and crime panels to focus on integrity and impartiality.

[Lord Shipley]

My Lords, I will speak in a moment on Amendments 2 and 3, but I would like to speak briefly to Amendment 13, which stands in the names of my noble friend Lady Hamwee and myself. This relates to the checks and balances which are, in theory, to be strict; it also relates to the substitution of or deputising for any member who is unable to attend a meeting of the panel, and to the quorum and the need to define the quorum required for a meeting of the panel actually to be held. There are important reasons why this matters.

At Report, my noble friend the Minister said that substitutes would be permitted at meetings of the panel. I seek further clarification as to exactly how this is going to be done, because it matters. In terms of the two-thirds of the membership of the panel having the power to veto appointment of a chief constable or the precept, then who attends the meeting and what the quorum is matter: these points become material. One has to maximise the number of people who can attend, and if a member of the panel cannot attend then the Bill should state who would be permitted to attend that meeting of the panel on behalf of that same local authority. Also, as there will be decisions to be made which do not require a two-thirds majority but nevertheless will be decided after debate on a simple majority basis, how many people are required to attend the meeting to make it valid seems to be highly material. I am looking for further clarification about this matter from my noble friend the Minister because we see it as being very much part of the checks and balances on the police and crime commissioner, without which it is not clear that those checks and balances would function correctly.

I turn to Amendments 2 and 3 briefly, because there has been a very good and helpful debate on this matter. As someone who has listened to that debate, it seems to me that the two amendments are not incompatible, but there are differences between them. It would be very helpful if my noble friend the Minister could take those two amendments away and see if they could be redrafted in a way which would meet the requirements and wishes of all sides of your Lordships’ House. It seems now that there is an opportunity for this to be done.

--- Later in debate ---

[Baroness Browning]

The noble Baroness and I have, in the course of our debates and deliberations, exchanged stats on various polls. Certainly, the Bill has sought at all stages to strengthen that accountability of the PCC, and I am very grateful to Members on all sides of the House in this. In particular, we have brought forward amendments at Report stage which strengthen the panel, so that the PCC can be held to account, but in turn the public hold the PCC to account.

I believe that the events of recent weeks go to show how ineffective the present governance system is in robustly holding the police to account. If anything, I believe that it goes to show how important these reforms are—something that I realise from the body language opposite me is not agreed—but none the less I believe that is the case. Of course, the serious events that have been before both Houses in the last week or two were not known at the time that the Bill was drafted, but the Bill itself will seek to restore that public confidence in the police, a confidence that has been rocked to its foundations. Only a police service that is reactive to public concerns and held to account democratically will address the deficit.

I come to some points that have been raised here, and particularly in respect of the Metropolitan Police. Noble Lords will know that I am a Home Office Minister. I cannot, and it would not be appropriate for me to feel I had to, answer for the Mayor of London; I am quite sure that he is robust enough to answer any criticisms for himself. However, it would reflect very badly on the police and crime commissioner—

[Baroness O'Loan]

I apologise for interrupting the Minister, but will she explain, if she can, the inadequacies of the present system? My understanding is that under the present system in London there is an elected mayor.

Metropolitan Police Service

Baroness O'Loan Excerpts

Monday 18th July 2011 Lords Chamber

[Baroness Browning]

My Lords, the noble Lord, I know, has been a victim of phone hacking and raises important issues. That is why the judicial inquiry and the two inquiries that are being overseen by Sue Akers in the Metropolitan Police have been set up. I have every confidence in the Sue Akers inquiries. It is not for me as a Home Office Minister to intervene in police operational matters, but I hope that the noble Lord’s points, which are very important, will be dealt with by the inquiries.

[Baroness O'Loan]

My Lords—

Police Reform and Social Responsibility Bill

Baroness O'Loan Excerpts

Wednesday 11th May 2011 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I hope that I will be forgiven the discourtesy of absence from some parts of this debate because of a commitment in a Committee Room upstairs. I join others in welcoming my noble friend the new Minister. I learnt the other day—indeed, I am bound to say that she told me herself—that she is an extremely good cook. In this Bill, she has as ingredients the meat of police commissioners, the wine of the licensing provisions and the hot spice of universal jurisdiction, but it may be difficult for her to produce a dish that is up to her usual culinary standard at the end of our discussions. Having been a Member in the other place with her, I can confirm her reputation for being doughty, determined and, above all, dangerously disarming.

I pay tribute to my noble friend Lady Harris for the way in which she moved the amendment. She was very persuasive, but I am bound to say that, with great respect, I disagree with her profoundly. I would like to remind the House of one or two things that have happened. Before the coalition, the Liberal Democrats were solidly in favour of democratic accountability for the police service through elected police authorities, to which we will return later today. The Conservative Party, the larger partner in the coalition, has been consistently in favour of the election of police commissioners. Both parts of the coalition have been solidly in favour of democratic accountability for the police through some kind of elected person or body through which the police service for a police area should be accountable. The amendments proposed by my noble friend Lady Harris would destroy that determination. I do not think that we have reached the point in coalition politics at which we should distance ourselves from the strongly held views of both parties because we are wedded to some old practices, which, in my view, do not stand the tests of scrutiny that have been relied upon by my noble friend. Indeed, what we should be discussing, if we are to discuss this at all, is the form of democratic accountability rather than whether there should be democratic accountability. These amendments would wreck the first Part of the Bill completely, for which reason I am opposed to them.

On police authorities, we will have a debate later about Welsh police authorities. With great respect to my very distinguished colleagues in this House who will speak in favour of basically no change in Welsh police authorities, I do not think that they could be more wrong, and I do not think that anybody could be more wrong than to say that what we have at present is a democratically accountable system that does the business really well. If one were just to stray into Wales for a moment and walk down the streets of Llanfair Caereinion, Llanfyllin or Llanrhaeadr-ym-Mochnant and ask people on those streets to name a single member of the police authority for their police area, unless one had happened to bump into a member or one of his or her nearest or dearest, they probably would not have a clue that a police authority existed, let alone who those members were.

In a professional capacity as a barrister, I have worked for and with police authorities and I have seen them in operation—I have seen very good and I have seen much less good. As a Member of the other place for a constituency in rural Powys, I had dealings with the police force and the police authority for those 14 years, and I can say very clearly that if anybody was concerned about the police they did not go to the police authority or any member of it, because they had no idea where to go. By and large, they went to their local Member of Parliament, who then processed the issue or complaint for them.

If one looks at some police authorities—it would be invidious to name names or issues, particularly as some of my experience is shrouded in professional confidentiality—one can be far from confident that every issue has been dealt with in a way that the public would regard as properly accountable and transparent. Indeed, there has been an issue involving a chief officer this week which has been well publicised and which raises many issues about the performance of that police authority and the relationship between that police officer and the public that he supposedly serves as the paragon of policing.

This amendment is going far too far. We should carry out the examination of police authorities that the Bill predicates and should not waver one bit from a form of democratic accountability, whatever that form be.

[Baroness O'Loan]

My Lords, first, I welcome the Minister to her onerous new responsibilities. She has a particularly difficult Bill to deal with.

Policing operates only with the consent of the people, and it has long been the experience in the United Kingdom that that consent depends very largely on the extent to which the people can trust in the independence and impartiality of the policing service which is delivered to them.

I want for a moment to refer to the situation in Northern Ireland in which policing became very seriously politicised and the consequences of that politicisation. In the first instance, there was a loss of community confidence in the police, which over the period of the Troubles crossed from the nationalist republican community into the loyalist community. It is important to acknowledge that the loss of confidence was right across the community. That led to a lack of support for the police in critical moments. I am thinking in particular about things like demonstrations, which are becoming more prevalent on the streets of the United Kingdom. It led to the loss of the flow of active information to the police, and the extent to which people were prepared to come forward and tell the police things. They very often told me as Police Ombudsman that the decisions that they made were based on whether they thought they might be listened to anyway. So people stopped providing information—sometimes information relating to the commission of crimes—and that led to the necessity for greater use of other mechanisms for collecting information, with the additional costs attached to those, all the complexities of the Regulation of Investigatory Powers Act and the potential for the increase in corruption. Ultimately, the loss of confidence in policing led to a lack of proper accountability in Northern Ireland, and we saw what happened, and we saw the necessity for the commission headed by the noble Lord, Lord Patten, and all the consequences which derived from that. Members of the House will now have gathered that I stand in support of the noble Baroness, Lady Harris.

I want to consider what it is that we are contemplating in this election of a police commissioner. The noble Baroness, Lady Harris, has identified the deficiencies in what a police commissioner could deliver which is not currently delivered by a police authority. I speak as a former member of the Police Authority for Northern Ireland, and I know the extent to which authorities go in extending their reach and bringing people in. When you combine that with the district and community policing partnerships that exist across the country, there is very significant outreach between the police, the police authority and those who are served by policing. The imposition of a single elected person would almost inevitably result in the election of someone who was politically affiliated. Political affiliation could be very damaging to policing and could lead to decisions in the allocation of resources which may well not reflect the needs of the marginalised, the poor, the vulnerable, the disabled and many other constituents of our community.