Illegal Migration Bill

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I thank the noble Baroness, Lady Ludford, for raising this interesting point and for her proposed Amendment 133. The purpose of the Bill is to prevent and deter illegal migration, and it provides for swift removal, with very few exceptions. Therefore, I am not quite sure why a new clause after Clause 60 is necessary, particularly because, in respect of applications for work from asylum seekers who are already having their asylum claims processed, as far as I know—I am subject to correction here—those are covered under the 2016 Immigration Rules. Part 11B sets out the policy criteria, which can be found in paragraphs 360A, B and C.

I will also comment on various noble Lords’ claims about the potential contribution that asylum seekers can make to the economy. Yes, there may indeed be contributions which can be made, but perhaps we should also consider the costs, the compliance costs and the fact that the UK is trying to move to a high-skills economy, where people with higher skills or where there is a need already can apply to work here under the normal rules. I cannot see why we need this amendment to the Bill.

[Baroness Hamwee (LD)]

I had not intended to say anything about this amendment, but I will say a couple of things. First, those of us who have met a number of asylum seekers have been very impressed by the high level of skills and enthusiasm for work that they exhibit. Secondly, in response to the noble Baroness, Lady Stowell, I understand the point that she is making about the objective of the Bill, but it has a very long Long Title and I doubt my noble friend would have been able to table her amendment had the clerks not agreed that it was in order.

[Baroness Stowell of Beeston (Con)]

I am not in any way trying—

Police: Neighbourhood Policing

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Tuesday 23rd July 2013 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, as I said, neighbourhood policing is indeed very important but it is right that police chiefs, in consultation with their elected PCCs, decide on the priorities for their area. Crime is down and satisfaction is up. Another thing that this Government have done to ensure that the public are able to hold their police forces to account is to give them greater information about the performance of their local police forces so that they can properly assess that performance and hold those police chiefs to account.

[Baroness Hamwee]

My Lords, does the Minister welcome, as I do, another item in the report—namely, that forces are making greater efforts, as they have been doing over the years, but with variable success, to reduce the amount of patrolling in pairs? Patrols by single officers are more successful, not least because the public are not deterred from approaching an officer, rather than thinking that if there are two officers, they are interrupting a private conversation.

Late Night Levy (Application and Administration) Regulations 2012

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Monday 8th October 2012 Grand Committee

[Baroness Stowell of Beeston]

That is correct. The noble Baroness asked who is covered by the exemptions—a point also referred to by my noble friend Lady Hamwee. For the sake of accuracy, it is worth saying that the exemptions and reductions are not covered by these regulations; they are part of another set of regulations. However, the noble Baroness asked whether restaurants in particular would be exempt. A restaurant selling alcohol that was open during the period during which the local authority deemed the late-night levy would apply would be caught by the levy. However, excluded under the exemptions would be a hotel with overnight accommodation whose bar was open only to residents during the period of late-night levy that might be operational in another part of the authority. That hotel would not be caught.

My noble friend asked about exemptions. As I said, those are not strictly covered by these regulations, but I think that one of her points was to question why the exemptions are not by geographic area but by types of establishment—perhaps expressing her disappointment is a better way to define it. That is because it would be very difficult for the licensing authority to introduce the levy in that way. One of the things that we are trying to achieve is to make sure that this is the least burdensome that it can possibly be in terms of administrative cost. If a venue operating in a part of the licensing authority was caught by the levy charges, had opened in that levy’s time and had attracted any kind of policing need, policing costs would be involved by the very nature of the police probably having to leave the town centre to go to that area. However, there are specific exemptions, as my noble friend acknowledged. Venues such as country village pubs would fall under that heading.

The noble Baroness asked about the business improvement districts and how in particular they are caught by the exemptions. These matters are not the subject of the regulations today but we have made provision in separate regulations that business improvement districts with a crime prevention objective will be capable of being exempt from the levy, which addresses her concern on that. She also asked whether the licensing authority would have discretion on community premises. The authority will not have to make a new decision on community premises because they are already defined as a group of premises under the Licensing Act. If somebody’s premises fall under that heading, they are already identified as being premises of that kind.

Before I turn to the detail of my noble friend’s questions, the noble Baroness, Lady Smith, asked how many authorities we expect to introduce the levy. I think I am right in saying that the number she was referring me to was actually for the EMROs. As far as the late-night levy is concerned, we expect about 94 licensing authorities to take advantage of it.

As to the specific questions raised by my noble friend on why the licensing authority has discretion under Regulation 7(3), we believe that licensing authorities should have the discretion to adjust a holder’s liability if the licence is surrendered—for instance, because the licence holder ceases to trade. There is good reason for this. The availability of such discretion reflects the fact that the circumstances in which a licence holder may surrender the licence will vary considerably from case to case. For instance, a licensing authority might choose to exercise this discretion where the surrender is as a result of the licence holder suffering a long-term illness, but not in a case where a licence holder surrendered the licence in anticipation of it being revoked at a review hearing. We believe that it should be open to a licensing authority to decide that holders whose licences are revoked for contravening the licensing objectives should not be eligible for a reduction in their liability to the levy.

My noble friend also asked why premises under construction are to go into band C—a single band regardless of size—in Regulation 4(2). Premises that have a rateable value will be placed in the appropriate band. Regulation 4(2) addresses only those cases where there is no rateable value. Some premises, such as public parks or agricultural land, are exempt from rating. Where this is the reason that there is no rating, the premises are treated as being in the lowest band, band A. Where the premises have no rateable value because they are under construction, the premises are placed in band C.

Finally, my noble friend asked why, when there are two or more hereditaments, the rateable value is not the aggregate. The use of the higher band in Regulation 4(4), as opposed to the aggregate, is intended to reflect the way such a case would be treated under the current fees regulations as a matter of administrative convenience. It should be noted that this is expected to be a rare and temporary circumstance. Where there is identity of occupation, the premises will form a single hereditament.

I think I have covered the points that have been raised today. In conclusion, the levy is a key part of our work to rebalance the Licensing Act in favour of local communities. I am sure the Committee will agree that it is right that those businesses that benefit from selling alcohol late at night should make a reasonable contribution to late-night policing costs.

I am grateful for the support that has been voiced today by noble Lords.

[Baroness Hamwee]

With regard to my point about premises under construction, the Minister’s answer—and I do not blame her as it is all quite complicated—was, “Well, when they’re under construction, they’re in band C”, which is repeating the question rather than being an answer. Will she be able to let me have a note about the underlying thinking about why they will be in band C and why there is any need for a band to be attributed to premises which are not operating because they are still being constructed? I do not want to delay noble Lords now but I will be interested in the detail if the noble Baroness is able to deal with it after today.

[Baroness Stowell of Beeston]

I am grateful to my noble friend for her patience and for highlighting that I had not properly responded to her question. I will follow up in writing.

Protection of Freedoms Bill

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Tuesday 31st January 2012 Lords Chamber

[Baroness Hamwee]

The noble Baroness pointed to the words “or otherwise” at the end of the amendment. I may not have been paying sufficient attention to the argument, in which case I apologise, but if this matter is considered further perhaps she would take on board that within this definition the impairment is through only physical or mental disability or illness, and that the last five words are a description of what might cause the physical or mental disability or illness. Therefore, one cannot read “or otherwise” as extending the impairment. I repeat: the impairment is only through disability or illness. As I listened to the noble Baroness, I thought that she was asking us to read “or otherwise” as adding to “disability or illness”, which I do not think it does.

[Baroness Stowell of Beeston]

I am sorry if I in any way misled your Lordships. In her definition of those final five words—particularly the use of “otherwise”—the noble Baroness is correct. I was seeking to make it clear that impairment through physical or mental disability could be due to old age or otherwise. I am not trying to introduce something new; I am saying that it is possible for the impairment to be not just limited to old age. I hope that I am making myself clear; it does get rather complicated. However, in simple terms, I think that the noble Baroness is right.

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[Baroness Hamwee]

My Lords, Amendment 15 deals with membership of the National DNA Database Strategy Board. In Committee, I moved an amendment requiring rules about the composition of the board to be included as part of the governance arrangements. The Minister reassured me that the Government's rules would include full membership of the board. She said that an independent element in the form of representation from the Information Commissioner's Office and the National DNA Database Ethics Group would be included. She also said that she would be happy to receive suggestions to strengthen the independent element. This is such a suggestion.

My point in that debate and now is that an independent element need not be, and possibly should not be, a member of the board in a representative capacity. Noble Lords will all have experience of boards to which independent members bring exactly that: independence. They come as individuals with not only independence but judgment, experience of the wider world and so on. If they are representatives of other organisations, they have a rather different role to play. My reason for moving the amendment again is not just to respond to the invitation issued in Committee but to ask the Government to bear this in mind and not exclude the desirability of having true independence involved in the governance of the board. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend for her explanation in moving her amendment. The first thing I will make clear to her is that we are not averse to including on the National DNA Database Strategy Board someone who is wholly independent in the sense that they have no direct or indirect interest in this field and, as such, can exercise a role akin to that of a non-executive director, as my noble friend explained and illustrated. All I can do at this time is restate what I said in Committee: namely, as she acknowledged, that the governance rules that must be published under the new Section 63AB(6) of PACE will include the full membership of the board, and that membership will continue to include an independent element in the form of representation from the Information Commissioner's Office, the National DNA Database Ethics Group and the Forensic Science Regulator. We do not consider it necessary to specify the membership of the board in the Bill or at this time to specify what my right honourable friend the Home Secretary might include in the governance when it is decided and published, but I am sure that in reviewing the membership of the board she will consider the points that have been made by my noble friend. I think she will want to ensure that we are not so specific in those governance rules that they prevent us changing any of the independent elements of the membership of that board in future, when different organisations might be associated with DNA.

I hope that my explanations have given my noble friend the assurance she needs that we understand the importance of an independent element in the board and that we want to retain flexibility for the future in the make-up of the board. However, we will certainly take into account the points she has made.

Protection of Freedoms Bill

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Thursday 15th December 2011 Grand Committee

[Baroness Hamwee]

I do speak for myself. I hope Amendment 124, at any rate in the drafting, is a little more straightforward. I declare an interest as one of a number of vice presidents of the Chartered Institute of Environmental Health, from which this amendment comes. The amendment is concerned with environmental health and, in particular, with noise.

There has been, I understand, a long-running issue as to whether the investigation of noise nuisance requires covert surveillance. It is not the Home Office but in fact Defra which has mainly been concerned with this. Environmental health officers listen to noise in its context and record, one of the technical terms, anything listened to which brings—as I understand it since it is as the institute understands it—what it does within the meaning of Section 26(9) of RIPA. The Home Office takes the view that dealing with noise nuisance does not ordinarily require covert surveillance and so it is not caught by RIPA. Perhaps this amendment covers it if and when it does. Therefore this amendment is a probing one. The institute is generally in support of the need for judicial authorisation but so far as its work is concerned in this area there are some difficulties.

As this has been long running, it is able to anticipate the arguments that may be made against the need for such an amendment so I am going to start with the response and then its response to each of the Home Office’s likely responses. The first is that surveillance follows complaints so quickly that obtaining authorisation would not be reasonably practicable and that this excuses the need for authorisation. The institute says that the exception is when surveillance is undertaken as an “immediate response”, such as when a police officer sights a suspect in the street. There is always going to be a delay between the making of the noise complaint and its investigation. Secondly, if local authorities warn noise perpetrators that they may be monitored surveillance following that will not be covert and so will not be caught by RIPA.

Giving a warning causes delay. It rather undermines the duty on local authorities under the Environmental Protection Act to investigate complaints and quite obviously it would tend to be self-defeating. I dare say many noble Lords will have experienced complaint in different contexts to noise or what they may perceive as noise. I perceive muzak as noise. I have often asked for it to be turned down. It is turned down temporarily in a place of entertainment and up it goes again. Thirdly, if local authorities warn noise perpetrators that they may be monitored, again surveillance will not be covert and so not caught. I beg your pardon. I should have said that giving a warning takes the investigation out of RIPA and the measurement of sound pressure levels does not require authorisation. But there is no numerical standard for noise nuisance because environmental health officers have to judge the noise in context. Depending on what else is going on, the noise may or may not be intrusive, and for evidential purposes it is accepted practice to record it.

Fourthly, private information is unlikely to be obtained because perpetrators have no right of privacy to information that is audible outside the premises it is coming from. However, the institute draws attention to the definition in RIPA of “private information” by reference to its content as distinct from its audibility. Fifthly, surveillance carried out without authorisation is not necessarily unlawful. That is the case where there is an equivalent process of authorisation in another statute, but that does not apply in this case. Lastly, the whole thrust of this part of the Bill is the protection of magistrates’ approval against unjustified snooping by local authorities, and both I and the institute have sympathy with that. The Home Office has confirmed in Answer to a parliamentary Question in another place that there is no evidence to suggest that noise investigations are being carried out inappropriately by local authorities. We have read of instances where local authorities have rather overstepped the mark in their use of the powers, but this is not one of those examples.

In the hope that I have not taken too much of the Minister’s speech in anticipation of the answer, I beg to move.

[Baroness Stowell of Beeston]

My Lords, I thank my noble friend for her introduction to the amendment, and indeed she has anticipated quite a lot of what I will say in response. None the less, there are some things that are worth emphasising, and I hope that in doing so I can give her some assurances. I certainly agree that noise nuisance is something that is clearly intolerable to the person experiencing it and that in many instances the noise under investigation may occur at night, so anyone who is subject to that kind of disturbance feels strongly about the situation they find themselves in and wants any action to deal with it to be rapid. However, Amendment 124 is unnecessary because the sort of noise we are talking about, that which causes disturbance and affects people’s lives, is not caught by RIPA.

Before I go on to cover some of the topics raised by my noble friend, let me say that Home Office officials have already met representatives of the Chartered Institute of Environmental Health and of Defra to discuss these points. We have said that we shall work with them on revising the RIPA code of practice on covert surveillance in order to make it clear that authorisation under RIPA is unlikely to be necessary for noise abatement reasons. Surveillance conducted and governed under RIPA relates to private information only. It requires that when public authorities obtain private information covertly, they do so only when it is necessary and proportionate, in line with our right to privacy. However, the privacy implications of someone making a loud noise will usually be such that RIPA is not engaged. Loud machinery, alarms or music, for instance, are not private information, and if the noise emanating from someone’s house because of, say, an argument is so loud that it can be heard in the street outside or the adjoining property, it is highly questionable whether the people concerned have a realistic expectation of privacy. If the noise involves violent or threatening behaviour, then it would always be appropriate to call for the police.

If the council’s policy is to serve an abatement notice warning that monitoring may be carried out, then that monitoring cannot be deemed to be covert in nature, which my noble friend has already anticipated. In these scenarios, a RIPA authorisation would not be required. This is made clear in the RIPA covert surveillance code of practice; that code has statutory force.

The only instance where a RIPA authorisation definitely would be required is where a local authority noise monitoring device was calibrated to boost the signal so as to record conversations which could not be heard outside the property with the naked ear. However, this would constitute intrusive surveillance and RIPA does not permit local authorities to do this. Most people would agree that this would be an unwarranted breach of someone’s privacy. I therefore maintain that local authority noise monitoring would not normally require to be authorised under RIPA; that this is already made clear in RIPA; and that it therefore would not be subject to prior magistrate approval. However, as I say, we are meeting with the Chartered Institute of Environmental Health and Defra to look at the code of practice. Before I ask my noble friend to consider withdrawing her amendment, I wish to reinforce the Government’s view that noise disturbance of the kind she describes is an important matter. However, I do not think that her amendment is necessary.

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[Baroness Stowell of Beeston]

My Lords, I will endeavour to respond as comprehensively as I can to the issues raised in this short debate. I appreciate the concerns raised by the Bar Council but your Lordships will understand that no one can regard themselves as beyond the law or immune from investigation or prosecution. Nevertheless, RIPA recognises the special relationship between a lawyer and client, and puts in place special protections for any covert obtaining of material subject to legal and professional privilege.

RIPA already limits obtaining legally privileged material to intelligence and law enforcement agencies investigating serious crime or acting in the interests of national security. In each case, whether it is interception or surveillance, internal authorisation is by senior official—for instance, the director-general of the Security Service or a chief constable. In addition, and crucially, this is then subject to external independent approval, either by the Secretary of State or a surveillance commissioner, before any covert action can be taken.

The RIPA codes of practice, which have statutory force, provide further safeguards. The interception code makes it clear that where communications which include legally privileged communications have been intercepted and retained, or where the subject of the interception is to be a lawyer, the matter should be reported to the Interception of Communications Commissioner during his inspections and the material be made available to him, if requested.

In addition to safeguards governing the handling and retention of intercept material as provided for in Section 15 of the Act, caseworkers who examine intercepted communications should be alert to any intercept material which may be subject to legal privilege. Where there is doubt as to whether the communications are subject to legal privilege, advice should be sought from a legal adviser within the intercepting agency. Similar advice should also be sought where there is doubt over whether communications are not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The covert surveillance and covert human intelligence source codes make it clear that such independent external approvals will be granted only where there are exceptional and compelling circumstances that make the authorisation necessary—for instance, where there is a threat to life or limb or to national security.

My noble friend Lady Hamwee and the noble Lord, Lord Rosser, have already made reference to the McE case. In 2009, the former Judicial Committee of your Lordships’ House ruled in that case that RIPA could be used to authorise the covert surveillance of legally privileged consultations but that this needed to be subject to an enhanced approval process. The enhanced RIPA safeguards were tested in the case of RA v Chief Constable of the Police Service of Northern Ireland where the High Court of Northern Ireland ruled that the RIPA regime was lawful and provided sufficient safeguards against abuse. To be clear, those new safeguards have been tested in a court of law and were found to be robust.

In reference to the comments made by the noble and learned Lord, Lord Scott, about the amendment put forward by my noble friend Lady Hamwee, I will of course leave my noble friend to respond to him. Given these existing stringent limitations and safeguards on public authorities obtaining legally privileged material under RIPA, and the fact they have been tested in court, as I have said, and have been found to be robust, I would suggest to my noble friend that this amendment is unnecessary and I invite her to withdraw it.

[Baroness Hamwee]

My Lords, this being Grand Committee, of course I will withdraw the amendment. The noble Baroness’s reference to the role of the commissioner and some other comments seem to be steps taken to deal with the issue after the horse has bolted. But I will read her comments carefully. The point that no one is immune from prosecution is not something with which I seek to argue. It is a parallel but different point.

The noble and learned Lord, Lord Scott, make a very interesting point about regulations made by the Secretary of State. I did not mean to disclaim responsibility for drafting the amendment; I meant to give credit to others. But I did not draft it and I do not think that it would be right for me to attempt to respond in any detail at this point. The noble and learned Lord set me an interesting dilemma and I shall think about it after today’s Committee Sitting to consider how one might address it.

I do not believe that the Bar Council would have gone to the effort of dealing with a matter about which the current Lord Chief Justice has himself expressed disquiet had it felt that an amendment was not necessary, so I will be talking to the council between now and the next stage. Other noble Lords have asked if there might be a meeting to discuss a number of issues, and this is one that will be particularly amenable to some further discussion, if that is possible. I do want to imply anything as regards the noble Baroness, but for myself this is pretty much above my pay grade. I beg leave to withdraw the amendment.

Protection of Freedoms Bill

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Tuesday 6th December 2011 Lords Chamber

[Baroness Hamwee]

My Lords, I hope that we can dispose of this quickly. Clause 72 deals with information about barring decisions and my question is about the consent given by the object, if I can put it that way, of an inquiry who may consent to the provision of information when that consent, we are told in proposed new Section 30A(4) of the 2006 Act,

“also has effect in relation to any subsequent … application by”,

the same inquirer. I would be grateful if the Government can confirm that, in this context, consent can be withdrawn. I would read it that way and think that it is implied. However, there is certainly one example within the Bill: Clause 27, concerning biometric information of children in school, which deals with the consent of the parent and which says in terms that consent,

“may be withdrawn at any time”.

If it is necessary to spell that out in Clause 27, I would like to be quite certain that consent can be withdrawn effectively under the proposed new section contained in Clause 72. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lady Hamwee for her explanation in moving her amendment. Clause 72 introduces proposed new Section 30A into the Safeguarding Vulnerable Groups Act 2006. That section will allow regulated activity providers and others with a specified connection to a person to ask the Secretary of State whether that person is on the relevant Independent Safeguarding Authority barred list, or lists. For this, the person must provide their consent to the release of information about them. Proposed new Section 30A specifies that consent given for one such check would serve as consent for subsequent checks about that person made by the same party, as my noble friend has already explained. The aim of that final provision is to reduce bureaucracy for employers and others. If a person has consented to the provision of information, it makes no sense for an employer to have to seek a new declaration from them every time that they need to do a new check. Clearly, however, the consent must be valid.

In moving her amendment, my noble friend seeks to specify that prior consent will not be valid for future checks if that consent has been withdrawn. Our view—this is where I hope to be able to give my noble friend the assurance that she seeks—is that the current drafting of the Bill achieves this policy intention. If consent has been withdrawn then, according to the terms of the clause, there is no consent and the employer would have no basis to proceed. Operationally, employers will need to confirm that they have valid consent, or they will not be entitled to carry out a check.

It is probably worth mentioning, while I have the opportunity, a wider point in the context of Clause 72. Consent could be freely given, given the potential detrimental consequences to an individual. This was something which the Information Commissioner raised in a letter that he sent quite widely to noble Lords between Second Reading and Committee. He was seeking some clarification on this. Importantly, there is only a certain degree to which the state can and should intervene in the relationship between employer and employee. Naturally, if an employer should do anything untoward, an employee has access to the appropriate legal remedies but we do not anticipate that most employers would seek to coerce their employees.

The alternatives in this case are a system where consent needs to be given or one where it need not be. We choose the former because while pressure by an employer can never entirely be ruled out, it is better than information about someone being given to a third party without their knowledge. As the Information Commissioner noted in the briefing that he provided, a barred list check under proposed new Section 30A is only one of various ways for an employer to discharge their duty to check barred status so, should consent ever be an issue, there are alternatives. However, it is worth pointing out that criminal records checks themselves require the person who is the subject of the check to make the application.

Overall, I hope that what I have been able to say provides reassurance to my noble friend that the policy intention of her amendment, with which we agree, is catered for in the current drafting and that she will therefore feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Minister read my mind. I had wondered whether to draw to the attention of the House the points made by the Information Commissioner, and I thank her for answering them without my asking. Her response on what is meant by “consent” is helpful, and I beg leave to withdraw the amendment.

Protection of Freedoms Bill

Debate between Baroness Stowell of Beeston and Baroness Hamwee

Tuesday 29th November 2011 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I am very grateful to my noble friend Lady Berridge for her intervention. I am pleased to confirm that her analysis of the subsection preceding the one we are discussing is correct. I am also grateful to my noble friend Lord Newton. I will take his advice, consider his points and be sure to write to him. I have been given some comfort on the way in which we may be able to respond to his query by the intervention of my noble friend concerning the subsection preceding the one my noble friend Lady Hamwee seeks to amend.

[Baroness Hamwee]

My Lords, one always knows about one-third of the way into a sentence that a “but” is coming. I anticipated it when the noble Lord, Lord Dear, started to make his comments. I entirely agree with the noble Baroness, Lady Berridge, about the application of these provisions. That is a safeguard, but it seems to me that it is more of an answer to the noble Lord, Lord Dear, than it is to me.

Of course I understand the practical problems. I said a few minutes ago that all the amendments are probing. The problem often is that when one tables an amendment to probe, it is taken as if one means every word. I am looking for an answer to my underlying question and I am not sure that I have yet heard it. What worries me is that even on the fairly narrow track that the noble Baroness, Lady Berridge, identified, there is the possibility of driving a coach and horses through what we all think we are agreeing this afternoon. I do not seek to apply more bureaucracy, but I do seek clarity. I am not yet clear, but there are more stages and I will not make more of a nuisance of myself at this stage. I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, I am not sure whether I go down the route of paying the piper but the question of accountability, which this amendment raises, is immensely important. Parliament has decided over the years to agree the appointment of a number of commissioners to provide oversight. For that oversight to work in the best way, the line of accountability is one that one has to look at. I am not sure whether having a single commissioner is practicable, but the issue highlighted by this amendment is a very important one and I am glad that the noble Earl has brought it to the Committee.

[Baroness Stowell of Beeston]

My Lords, as the noble Earl, Lord Erroll, has explained, this proposed new clause seeks to combine a number of distinct statutory commissioners into a single privacy commissioner. As the noble Earl predicted, I am afraid that the Government are not persuaded that any benefits which may arise from such a merger would offset the disadvantages. Each of the five commissioners listed in subsection (3) of the proposed new clause requires a high degree of knowledge of relevant legislation and procedures to operate in specialist and technical areas.

Before I explain why the Government propose to set up the commissioners in this way, I will address the issue of accountability, as it is one that my noble friend Lady Hamwee raised as well. The noble Earl suggested that his privacy commissioner should be directly accountable to Parliament. The existing commissioners are independent officeholders and there is no question that they discharge their functions without fear or favour. If there were a question of a conflict of interest—I do not accept that there is—it would apply equally to a situation where the privacy commissioner would be directly accountable to Parliament. Parliament is subject to the Data Protection Act and the Freedom of Information Act, and thus to the jurisdiction of the Information Commissioner, so a conflict of interest could equally arise if he reported directly to Parliament. The existing accountability arrangements work well and I see no reason to change them.

Going back to the five commissioners, there is no doubt that in some cases the work of the various commissioners can be related but, in each case, there remain specific and crucial differences where their work remains distinct. To roll up all of the functions of the various commissioners would be to risk watering down the skills and expertise that are brought to bear in each of the areas. Moreover, given the wide diversion of roles and responsibilities of the five commissioners listed in the proposed new clause, I am not convinced that it would be possible for a single individual to provide adequate oversight in any given area—a point which I think that my noble friend Lady Hamwee made.

If a privacy commissioner were to be appointed, I envisage that he or she would quickly need several deputy commissioners, or a large body of support staff, to oversee the specific areas currently overseen by separate individuals. This would create an unwieldy body which, in all probability, would have less influence and impact, compared with the existing commissioners operating in niche areas. We can take the Interception of Communications Commissioner as an example of the specialist knowledge required in this area. That commissioner provides oversight of the intelligence agencies and law enforcement authorities by keeping under review their use of interception powers and their powers to acquire communications data. The role is very specific and the commissioner’s powers to require disclosure by the intelligence agencies, and others, of highly classified information means that it is a highly sensitive post that could not be amalgamated with a range of other, unrelated commissioner functions.

That said, we fully accept that there is a need for these various officeholders to work closely together, and I assure your Lordships that this is already happening. The Public Bill Committee that considered this Bill in the other place heard testimony from the Information Commissioner and the interim CCTV regulator. Both commissioners were clear that where their functions touched on similar areas, they remain adept at establishing and maintaining effective working relationships, so that they can complement rather than duplicate the work of the other. I see no reason to doubt why this cannot continue to be the model in the future.

While there is certainly some common ground between the work of the new Surveillance Camera Commissioner and the Information Commissioner, there are also important differences. The Information Commissioner highlighted, in his evidence to the Public Bill Committee, that his consideration of CCTV is limited to the sphere of data protection and, as such, that his office is not concerned with the effective use of cameras. Indeed, the commissioner saw this separation of functions as advantageous, stating,

“if you are specifically identified as Mr Privacy and expected to come down on the privacy side all the time, it is difficult to make judgments about the release of official information”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 97.]

Furthermore, the noble Earl might remember—I know that he has a great deal of experience in this area—that public confidence in CCTV is driven by both the proportionality and the effectiveness of deployment. The public want, rightly, to see that when surveillance cameras are deployed they help to bring criminals to justice.

In that same evidence session, the deputy Information Commissioner stated that,

“if the cameras do not work, we are not concerned, because cameras that do not work cannot intrude on someone’s privacy and that is what our driver is”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 24/3/11; col. 99.]

I would therefore be concerned about having all these functions under the umbrella of a privacy commissioner. It is important to note that the Information Commissioner plays a key role not only in making sure that personal data are properly protected but that information is freely available to the public in accordance with freedom of information legislation. A single privacy commissioner would undoubtedly tilt the overall balance of the role to the detriment of the Government’s objectives to promote openness and transparency.

In short, it is our view that the five commissioners that are the subject of the amendment all undertake sufficiently distinct roles to justify their separate identities. Where their roles interconnect, I am confident that they will, as now, work together effectively to ensure that they complement rather than duplicate each other’s work. We will of course keep the landscape of commissioners under review but, for the reasons that I have set out, I am not persuaded of the case for a single privacy commissioner. I hope that the noble Earl accepts these arguments and will be prepared to withdraw his amendment, but I am grateful to him for putting it forward in order for us to discuss these matters.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have just realised that I am about to ask my noble friend a question—my other noble friend.

The amendment would provide that as well as publishing the governance rules of the board, the Secretary of State would publish rules governing its composition. My question is an entirely simple one and there is nothing to be read between the lines. What will be the composition of the board and how will it be brought into the public domain? My noble friend Lady Stowell may say that governance covers composition, but clearly the membership of the board is important. It needs to be appropriate to its functions and the interests reflected in the composition are clearly a matter of public importance and concern. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend for this amendment and I hope that my response will provide the reassurance that she is looking for. This is another issue that was covered in the letter from the Information Commissioner sent to several noble Lords before our Committee stage.

The simplest thing for me to do in the first instance is refer to paragraph 130 on page 31 of the Explanatory Notes, which states:

“The principal members of the Board are the Association of Chief Police Officers, the Association of Police Authorities (in future, following the enactment of the Police Reform and Social Responsibility Bill, a representative of Police and Crime Commissioners) and the Home Office, but there is also an independent element to the Board from non-police bodies, such as the Information Commissioner and the National DNA Database Ethics Group”.

I am happy to put on the record that the governance rules set out in new Section 63AB(6) of the Police and Criminal Evidence Act 1984, as inserted by Clause 24, will include the full membership of the board and that members will continue to include an independent element in the form of representation from the Information Commissioner’s Office and the national DNA database ethics group. If any of your Lordships have any suggestions for others that might join the board to strengthen the independent element, I will be happy to receive them. Having heard my remarks, I hope that my noble friend Lady Hamwee will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I am grateful for that. It did not occur to me to look at the Explanatory Notes. My noble friend is quite right; I should have done so. Her emphasis on the independent element from non-police bodies is important. As she read out that list it sounded police-heavy. The police have to operate the system so I am not suggesting that they should not be properly represented but as the debates today and throughout the passage of this Bill amply illustrate—if we need that illustration—it is not only the police who have an interest in these provisions and in the operation of handling DNA material, which is the subject of these various clauses. I am not sure that I would feel that it is adequate that there is simply “an independent element” from the bodies referred to. I would like to see “an independent element”—period. There are plenty of organisations which call on the services of, if not the great and the good—they are not necessarily the best—those who are interested and willing to give the public service that is required for this sort of activity, using the wisdom and judgment obtained through public life, or simply through a period of years.

What can I refer to? We have just been abolishing them but standards committees in local government have used an independent element. I am sure that there are plenty of examples but they always escape you on these occasions. Perhaps I can take what my noble friend has said as something of an invitation to explore this a little after the Committee stage. To have elements from what might be regarded as the usual suspects—I do not say that pejoratively—may not serve the purpose as well as we could.

[Baroness Stowell of Beeston]

I just want to re-emphasise that I would be grateful to any of your Lordships who have any suggestions to add on the independent element of the board after today’s debate.

[Baroness Hamwee]

My Lords, I would also say that it is not uncommon for there to be advertisements for applications using the Nolan principles for an independent element to boards such as this. Perhaps after this evening I shall try to come up with some other examples. I am grateful for that and I put on the record that I am grateful to the information commissioner for the thoughtful way in which he and his office have briefed your Lordships. I warn the government Front Bench that I have not read through to the end of his briefing so there will no doubt be more to come in future parts of the Bill. Having said that, I beg leave to withdraw the amendment.