Carriers’ Liability (Amendment) Regulations 2023

Earl of Erroll Excerpts

Monday 13th March 2023 Lords Chamber

The noble Baroness, Lady Ludford, read out the comments and the questions from the Road Haulage Association. I think they are fair questions, to which the association needs a fair answer. She went on to explain that the only defence in our courts as far as she understands it—and I understand it—is that of duress. I thought she rightly questioned whether road haulage providers should be able to demonstrate that they have adequate policies and adequate support for the drivers to make sure that they can indeed carry out the checks they are being required to do. The only analogy I was thinking of while the noble Baroness was speaking was of health and safety matters, which I occasionally deal with in magistrates’ courts. There is a reasonableness test about what company directors are required to do to ensure the safety of their employees. I think it is something worth exploring, and I look forward to the Minister’s answer.

[The Earl of Erroll (CB)]

My Lords, would it be all right for me to say a few words because the last point on duress interests me? I happened to catch a bit of a programme the other night on the Border Force. They had found some people in the back of a curtain-sided lorry. What is interesting is how they got in there. You would not have been able to detect that if the driver or no one else had been present when they got in. They had very cunningly cut the wire. Once they were in, they put it back together again. It was undetectable. I would have thought it would have been very reasonable for the driver to say that he had absolutely no idea that they were in there. In fact, the Border Force said the same to him and that they were not going to go after him as the people were very cunning.

This is the trouble. There will be certain types of lorry where it will be virtually impossible for the driver to detect that people have got in. I do not think that you should have a single defence, virtually an absolute defence. Life is complicated. You have got to be able to have a reasonable excuse.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I thank all noble Lords who have spoken in this short debate and acknowledge the particular concerns of the noble Lord, Lord Berkeley. The measures in these two instruments form part of the Government’s overall efforts to crack down on illegal migration. I look forward in time to debating the latest part of the work, the new Illegal Migration Bill, which noble Lords have referred to and which, of course, is presently being debated in the other place.

The regulations that are the basis of today’s discussions reform the clandestine entrant civil penalties scheme, which has existed since 1999 under the previous Labour Administration. The scheme has not been reformed, as the noble Lord, Lord Ponsonby, rightly observed, and the maximum penalty levels have not changed, in over 20 years. The scheme is designed to complement law enforcement activity against criminals. It does this through tackling negligence by people who are not criminals but whose carelessness none the less means that they are responsible for a clandestine entrant gaining access to a vehicle.

Illegal migration is facilitated by serious organised criminals exploiting people and profiting from human misery. A significant number of people who arrive in the UK by tourist and freight transport routes through concealment in vehicles have had their entry illegally facilitated by organised criminal gangs. This method of entry continues and endangers the lives of those involved. In many cases, this is a result of criminal gangs and opportunistic migrants taking advantage of unsecured, or poorly secured, vehicles to smuggle people into the UK clandestinely. To respond to the point that the noble Lord, Lord Berkeley, raised, “clandestine” and other terms are defined in statute in Sections 31A and 32 of the Immigration and Asylum Act 1999. To answer the noble Lord’s second question: yes, this applies to those travelling from the Republic of Ireland.

I agree with the noble Baroness, Lady Ludford, that we need to stop the dangerous crossings. That is the purpose of the proposed legislation. Sadly, safe and legal routes themselves are no answer as a deterrent. The Government were concerned that the existing clandestine entrant civil penalty scheme was not having the required effect. The data showed that drivers and other responsible persons frequently neglected to take the steps required to secure vehicles and that clandestine entrants continued to use these routes to come to the UK. Action was needed to remedy this.

These measures will disrupt the attempts by organised criminal gangs and opportunistic clandestine migrants to take advantage of unsecured or poorly secured vehicles to enter the United Kingdom illegally. Instead, this may prompt potential clandestine migrants to claim asylum in a safe country and to get quicker access to any help and support that they may require.

On the point raised by the noble Baroness, Lady Ludford, we continue to have productive dialogue with the Road Haulage Association, and I can confirm that our officials are speaking at one of its conferences on 22 March.

We have made it clear that, where checks cannot be carried out, they do not have to be carried out. The checklist that we have created covers all eventualities; some of them will not be relevant in particular circumstances.

As the noble Earl rightly observed, duress remains a statutory defence. That was reflected in the original scheme in 1999. We will consider whether drivers and companies carried out adequate checks as part of mitigation, which could see the level of fine reduced. This would cover the circumstances such as those described by the noble Earl.

I am of course grateful for the support of the noble Lord, Lord Ponsonby, for these regulations. It is for the reasons that I have already described that the United Kingdom operates a scheme to tackle illegal migration. The scheme means that, when clandestine entrants are found in a vehicle, a penalty can be imposed on any responsible person connected to the vehicle in question. In response to the point raised by the noble Lord, Lord Berkeley: yes, these measures match the risk and demand.

The reforms set out in the regulations are born out of the Government’s concern that the scheme is not having enough of an effect. I say that because, during the financial year 2020-21, there were 3,145 incidents where clandestine entrants were detected concealed in vehicles, despite the Covid-19 pandemic causing a lower volume of traffic. This rose to 3,838 incidents during the financial year 2021-22.

Drivers are not taking all the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to enter the UK. It is for this reason that the Government committed to reviewing and overhauling the scheme as part of their New Plan for Immigration. A public consultation on that plan was held from 24 March to 6 May 2021. The Government, as noble Lords will recall, then introduced changes to the scheme through primary legislation in the Nationality and Borders Act 2022. The changes in that primary legislation narrowed the statutory defences available to those who had carried a clandestine entrant. In Committee on that Bill, those measures were the subject of an amendment proposed by the noble Baroness, Lady Hamwee, who is not in her place today. That matter was canvassed during the passage of the Bill.

The 2022 Act introduced a new civil penalty for failing adequately to secure a goods vehicle, regardless of whether a clandestine entrant has been found. The final changes brought into effect by these regulations were made following a further public consultation held between 18 July and 12 September 2022. The Government carefully considered representations made by respondents about the possible impact of our proposed reforms, including on trade, supply routes and recruitment. The Government are committed to working with individuals and companies to support growth while delivering a strong and effective border. In short, we think it is appropriate to increase the maximum penalty levels for the existing offence of carrying clandestine entrants, as they have not changed, as the noble Lord, Lord Ponsonby, rightly observed, since 2002. It is also appropriate to set meaningful levels of penalty for the new offence of failing to secure a goods vehicle, to incentivise compliance with our security standards.

Both reforms have been designed with a view to cracking down on repeated instances of negligence, as opposed to unfairly penalising those who have striven to comply with the regulations. For this reason, the reformed scheme has introduced a strikes system for both offences, geared at targeting repeat offenders, with the highest penalty levels being applied only in cases where repeated instances of negligence are evident. Where a person or company is being fined, we have set out in a new statutory code of practice the mitigating circumstances in which they could be eligible for a reduction in the level of their penalty.

The maximum penalty for an individual responsible person for a first incident of carrying a clandestine entrant will be £6,000 per clandestine entrant. This rises to a maximum of £10,000 for a second and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £12,000 and £20,000 for each offence respectively. The maximum penalty for an individual responsible person for a first incident of failing to adequately secure a goods vehicle will be £1,500. This will rise to a maximum of £3,000 for a second incident in the past five years, and to a maximum of £6,000 for a third and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £3,000, £6,000 and £12,000.

A responsible person being fined for carrying a clandestine entrant could be eligible for a reduction of 50% in the level of their penalty if they have complied with the security regulations. A further reduction of 50% could be applied if they are a member of the civil penalty accreditation scheme. In respect of failing adequately to secure a goods vehicle, a responsible person who is not the driver and who was not present during the journey of the vehicle or the detached trailer to the UK could be eligible for a 50% reduction in their penalty if they acted to ensure compliance with the security regulations. I hope these measures go some way to assuage the concerns that the noble Lord, Lord Berkeley, elucidated. A further reduction of 50% could be applied if the responsible person is a member of the civil penalty accreditation scheme.

For both offences, individuals and companies will be able to apply for means testing to be applied when their level of penalty is being determined. The Secretary of State will be able to take into account those and any other factors they think appropriate in finalising the level of penalty to be levied. Indeed, they will retain a discretion not to impose a penalty at all in appropriate cases. The Government want people and companies to avoid being fined, and they can do so by complying with the security standards. We have set these in the new statutory regulations presently before the House. We have promoted adherence to the standards through further engagement with drivers and industry. This includes relaunching the civil penalty accreditation scheme I just mentioned, through which members are eligible for a potential 50% reduction in any fine.

The Government believe that this package of measures strikes the right balance between recognising the impact of penalties on individuals, companies and industry and incentivising compliance with our security standards and protecting border security. We are focused on delivering a fair and effective immigration system and, as I have said, these measures will allow us to strike the right balance in pursuit of that aim. With all that, I ask the noble Lord to withdraw his Motion.

HM Passport Office: Backlogs

Earl of Erroll Excerpts

Thursday 12th May 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

HMPO’s staffing numbers have increased by 500 since last April, and it is in the process of recruiting a further 700 people. In total, as of 1 April this year, there were more than 4,000 staff in passport production roles.

[The Earl of Erroll (CB)]

First, I am reassured. The reason I knew it was six months—I will point out another wrinkle in this—is that I was going abroad in March, so I anticipated this issue and sent my application off early. It was very efficient and I got my passport back really quite quickly. The only problem was that the courier kept trying to deliver it to the wrong address because of the postcode—but do not worry about that. There was no way of putting in an extra message for the delivery driver saying, “Please go to the gate at something or other”—because I live in the countryside. Anyway, leaving that aside, the process was very efficient.

But there is another wrinkle. Normally, when you renew early in the UK—I realise that this particularly concerns us Scots, who worry about money—that extra period is put on to your passport. The expiry date is taken from when the current passport expires. The EU counts it from when it arrives—that is, the renewal date—so be careful, because you lose that bit that you used to get credited with on your passport under the old British system. Personally, I think that it is unfair. I am delighted that the passport can just put it on, but you do need to warn travellers that they might need to add a bit more on.

The thing I really want to ask, though, is this: what plans are there to deal with the extra 1,200 staff who have been specially recruited to deal with the problem? That is quite a swelling of the Civil Service at a time when I thought we were trying to economise and cut back. Are these people full-time staff that the Civil Service will have to retain for ever and somehow find other employment for—or what plans have we for downsizing again when the crisis is over?

[Baroness Williams of Trafford (Con)]

Again, the noble Lord makes a good point. I will inquire as to whether we have recruited permanent staff or agency staff. If they are permanent full-time staff, they can of course be flexible to meet the needs of other parts of the Civil Service.

Daniel Morgan Independent Panel Report

Earl of Erroll Excerpts

Thursday 24th March 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

On the back of all the discussions we have been having today, it is written in statute that within 56 days the Mayor of London and the Commissioner of the Metropolitan Police will have to respond with an action plan to deal with all the issues we have talked about today. There will be an expectation that the recommendations be carried out within 12 months. In fact, the Home Secretary has made it clear that such is the seriousness of this that she hopes that some of that action plan will be taken forward within the 56 days.

[The Earl of Erroll (CB)]

My Lords, I will say a couple of things as a techie. First, RFID chips do not transmit on to any remote system—they work only in proximity, so they are checked only when you go through something. Therefore, you cannot track people through an RFID chip on a card. It is simply presented to a device, so you cannot track people around the place. It sounds like a great idea but it does not totally work; you would need to track people’s mobile phones, for example.

The next problem is the DBS check, which tells you only if someone has not been caught yet; it does not tell you what they are up to now. Another problem is the definition of a criminal offence. Not having a television licence gives you a criminal record, as does fishing without a licence. A lot of things give you a criminal record which really should not be there, so it is a tricky having a blanket thing saying that if people fail a DBS check, they should not be there. We should probably look at that system and have two different categories: one for the serious things where you really need to worry about whether you employ people, and another for the things which, to be honest, are trivial—they are almost statutory offences but yet they are still criminal offences. There should be a review of that.

[Baroness Williams of Trafford (Con)]

I take the points the noble Earl makes about the various technological solutions. Of course, we will consider any recommendations made by the Angiolini inquiry in this space. I would also say to the noble Earl that police vetting is a lot more thorough than DBS checks. However, there is definitely more to come on this, and I look forward to some of these things being addressed both in the short term and within the next year.

European Arrest Warrant, Europol and Eurojust

Earl of Erroll Excerpts

Monday 2nd March 2020 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord asks a question which I do not think I can answer in terms of the level, but I can get back to him. I would be making it up if I were to give an answer.

[The Earl of Erroll (CB)]

My Lords, one of the problems of the European arrest warrant was that, if there was a crime in the country that was trying to extradite but not in the country that the person was being demanded from, we used to have difficulty. I seem to remember there being an issue over xenophobia in one of the European countries and there was also a problem with plane spotters who took photographs of airplanes. Presumably, these issues will disappear under the new negotiations.

Alcohol

Earl of Erroll Excerpts

Tuesday 6th December 2016 Lords Chamber

[Lord Davies of Stamford]

My Lords—

[The Earl of Erroll (CB)]

My Lords—

[Baroness Evans of Bowes Park]

My Lords, it is the turn of the Cross Benches.

[The Earl of Erroll]

My Lords, is the Minister concerned that if you increase the price of alcohol, it makes other dangerous drugs relatively cheaper, and therefore what happens is that you switch people to another drug? Is she also concerned that addiction, and treating it, is the real problem, and that is what we should be doing?

[Baroness Williams of Trafford]

The Government’s ultimate aim is to deal with all types of addiction. It is not that we are not making a decision; we will do so in due course.

Policing and Crime Bill

Earl of Erroll Excerpts

Committee: 2nd sitting (Hansard - part one): House of Lords
Wednesday 26th October 2016 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I know nothing about this but a question suddenly occurred to me. If this is a statutory duty that these services are undertaking, will this help them secure funding to do it properly?

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, like the noble Lord, Lord Rosser, I recognise the sterling work and professionalism of the fire and rescue authorities in providing a brilliant service to the various communities during the significant number of flooding incidents, especially in December and January. The noble Lord talked about the Greater Manchester FRA, to which I pay full tribute. When I visited some of the affected areas, such as Rochdale, Salford and Bury over the new-year period, there was clearly effort from not just the community and police but the fire and rescue service. It provided fantastic input into what was a very successful operation in clearing up various areas.

It is clearly important that a timely and co-ordinated response is provided at these critical incidents. A number of agencies are involved generally in rescuing people from floods, particularly in coastal areas, including the Royal National Lifeboat Institution and the Maritime and Coastguard Agency, as well as fire and rescue authorities and the local charitable organisations that play a vital part in many communities. However, direction rests with local resilience forums for local responders to work out the arrangements that work best in their area. Often, this will be the fire and rescue authority but there may be many valid reasons—as the noble Lord, Lord Paddick, outlined—why they might choose a different responder in different circumstances and if that works locally. We do not want to reduce this flexibility with a one-size-fits-all approach as there may be good reasons why, in some areas and on some occasions, it makes more sense for a different responder to take the lead. The fact that two noble Lords have slightly different views on how that might be is proof of that.

I will give an example. During and in the direct aftermath of serious flooding, it has been vital for other agencies including voluntary groups to provide services to protect people from serious harm and to distribute clean water to those affected. Depending on the extent of the incident, it may be necessary for the Royal Air Force to take a major role, as with the flooding in 2007 when it deployed Sea King helicopters from as far afield as Cornwall, Anglesey and Yorkshire for the rescue of 120 people. There are advantages to a permissive, multi-agency regime where responders have broad powers and local discretion rather than a prescriptive duty for flooding or indeed any other type of critical incident we can identify. There is no question that fire and rescue authorities have the power they need to respond to floods. They have responded to all major flooding events and usually provide the most resources.

I welcome the scrutiny that this amendment provided of the arrangements for the emergency services’ response to flooding. To answer the brief question from the noble Earl, Lord Erroll, in terms of something being on a statutory footing, yes, it would necessitate a funding stream. However, for the reasons I have given and from the experiences I have had, I believe that the existing regime with broad, permissive powers gives both fire and rescue authorities and local resilience forums the flexibility they all need. On that note, I ask the noble Lord to withdraw his amendment.

Identity Documentation

Earl of Erroll Excerpts

Thursday 14th January 2016 Lords Chamber

[The Earl of Erroll (CB)]

My Lords, I want to look at this from a practical point of view. Will the ID cards or a national database work? The first thing I want to know is what is it for? People think that it will help with payments and with fraud but what I want to know is that someone has paid their bill, I do not really need to know who they are. With travel and passports, is this a great reliable thing with the Government issuing it? In 2007, it was admitted that there were 10,000 fraudulently obtained but real passports issued by the Passport Office, because even it cannot protect against everything.

In terms of access, we have House of Lords passes to get in here; we do not really need an ID card especially for that. On medical and NHS matters, we have a number for that. Could it be amalgamated with something else? The problem is that expatriates go abroad; that is why there are more NHS numbers than we have people. All those expatriates can come back here at any point and demand services.

You might want to prove your qualifications; you have a driving licence for that. I suppose you could try to amalgamate things into one card but would you have to change the card every time you got a different qualification? Actually, everything is online now—all they do is look you up. You are not even going to have the paper part any more that says what your speeding offences are and so on.

The other thing such a document could be for is collecting tax, with the NINO, or the national insurance number—but, “Oh, there are far too many of those”. Foreigners working here receive entitlements by paying in and if they come back here to work later on, they are entitled to benefits. If they come and retire here they are entitled to their past history. We have lots of people on the system who may come back. It is not one-to-one so we should not want it linked to ID cards.

So the ID card is going to identify the bad guys—great. Will it work? Does it say “terrorist” or “crook” on it? What does the CRB check, as it used to be called, tell you? What it says is that you have not been caught yet. This is the trouble with these things. The 2004 Madrid bombers, for instance, were stopped by the police, who had no idea that they were terrorists and let them go. Does a card tell you where the bail-jumper is? It does not have a special tracking device on it to tell you who is a bail-jumper; it does not do anything like that.

I point out that 35 million tourists come to this country every year, for eight days each on average—that is just the tourists; there are also all the businesspeople. That is an awful lot of foreign identity documents, issued by all sorts of places which I do not think I had better name; let us call them Ruritania in general, although I can tell you that an awful lot are issued by states that have no interest in helping us whatsoever. How do you check that a document belongs to a particular person, otherwise it is just a flash-and-go card; you look at the picture and maybe it looks sufficiently like the person: “You’ve grown a beard, okay, I won’t worry”? There are portable biometric readers but the trouble with biometrics is that they change with age; even DNA can change a bit but I do not know enough about it to know whether all or just a critical bit changes. What I do know is that, within the limited accuracy of laboratory test results—because they are always reduced to a set number of points that can be compared electronically—you will find that you have duplicate thumb or finger-prints, which, visually, you might be able to see are different. It is the same thing with a portion of DNA; usually it is said to be a one-in-6-million match. That means that, with that level of accuracy in the testing, there are 10 people in the UK with the same DNA as you. Given that most of the population are in the south-east, it means that quite a few of them are close to where you are. So, by coincidence, quite a few people could be stopped who might be mistaken for you.

Another big problem is false negatives. You stick your cash card into the wall to take out some money and you stick your ID card in alongside, you put your thumb on the reader and it then says you are not you. But you have a bill to pay or you have to pay a chap who is trying to do you for dropping litter on the ground—with all these new police powers or local authority powers we are getting. You cannot take out the money so you have to spend the night in jail because it has said that you are not you. The false negatives are very difficult; the moment you try to eliminate them, you lessen your biometric uniqueness. You have to blur it a bit more, because there are huge problems around that.

What I really worry about, which has been mentioned already, is the Gestapo/Stasi issue. Whenever the state has had a huge amount of knowledge about us, it has used it for its own ends. I will mention that at the very end.

It also helps fraud if you have a single number. The US experience of having a single tax number to link all your details makes it much easier. If you can get that off someone plus a couple of other bits, you get everything on them. It is much easier to impersonate them there. Here, it is much harder to get everything and there is therefore friction between the different silos, when something does not quite match if you catch the crooks. They have half your information but not all of it. Of course, if we link up all the databases it will be a magnet for the crooks and spies. The first thing I would do as a foreign agency would be to have someone in there to get the details so that I could put in implants, create identities and so on. It will only give us a false sense of security.

You can actually get a good feel for how someone is by building up a profile of what they do online. Their digital footprint is probably much more critical nowadays. With online feedback and references, you can discover whether people are good or bad by other people in the community telling you whether they are all right. That is how we do things in real life: we get references about people.

To finish off, I recommend a very good miniseries of “Doctor Zhivago” that was done in 2002. Interestingly, it was nothing like the old David Lean romance but all about how a powerful apparatchik with access to information can control a family for his own nefarious ends. We should just be careful that we do not end up with a J Edgar Hoover in the UK starting to control things because he has access to the databases. I am not entirely paranoid but, just because I am, it does not mean to say that they are not out to get me. Another thing I do not want to see is cordon and search to trawl for illegal immigrants or bail-jumpers, for example—how else are these people to be found?—because of the ID card. All I can say is that if you are eating your dinner and the waiters at your great occasion have all been hauled off for checking but did not have the right ID cards, you are going to be pretty cross.

Online Safety Bill [HL]

Earl of Erroll Excerpts

Friday 11th December 2015 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I am very pleased to speak in support of the amendment proposed by the noble Baroness, Lady Benjamin, which makes explicit the fact that decisions about filtering are not just made at the set-up stage. I recall that during Second Reading the noble Baroness, Lady Howe, sought to highlight the fact that, in the context of the current voluntary filtering agreement between the big four ISPs, there is nothing to stop a child lifting adult content filters after they have been put in place. This seems to be a serious design flaw with the voluntary agreement, and one that I am glad this Bill seeks to rectify.

I note that when the Minister was pressed on this point during Second Reading she said that,

“three-quarters of parents in the UK are confident that children are unable to bypass these tools. But to mitigate any further risk, as has been said today, ISPs email the main account holder when filter settings are set or changed”.—[Official Report, 17/7/2015; col. 860.]

I think that possibly the Minister misread the point. The lack of age verification in the event that after parents select filters at the set-up, their children subsequently—and unknown to them—turn the filters off, is not about bypassing filters.

The point is not that some very technologically able young people who can work out how to bypass filters should be subject to age verification. I am not sure how one would apply age verification to such clandestine activity. The concern relates instead to a larger group of children, with no great technological expertise, being able to switch off the filters in the same way as an adult who has no special technical expertise can do so, because the ISP has provided the user with the facility to maintain or lift filters. This is the process that should be age-verified. The idea that this concern has been sufficiently addressed by the provision of an email sent to the account holder after the filter settings have been changed, informing them of that fact, is deeply concerning.

Age verification should happen before an age-restricted activity is permitted. The idea that it is acceptable to do this after the fact, and by the most flimsy of arrangements, is quite extraordinary, to say the least. As the noble Baroness, Lady Benjamin, has said, even if you live in your inbox and open all your emails as they come in, it will still take you some time to address the problem if you are at work, which leaves the children exposed to harmful content, possibly for some hours. Most of us, however, take a while to get round to opening our emails—half a day, three days or a week. As the ComRes polling eloquently testifies, some people may never open it, leaving children exposed to adult content, unknown to their parents, who will assume the filters are still on indefinitely. I very much hope that when the Minister responds to this amendment, she will at least commit to review the provisions in place to help prevent children lifting adult content filters, after they have been introduced at the set-up, without prior age verification.

[The Earl of Erroll (CB)]

This amendment is quite logical, if the provisions are going to work. It is obvious that, if people can switch off filters, the whole thing is bypassed. I want to speak on the next amendment, about age checking, but this is a logical amendment to have if you want to get this Bill to work. As I said at Second Reading, filters are not quite good enough, because you can block only at the point when you access the page. Filters are quite crude—that is the problem; they tend to block entire websites, or they overblock and then people lift them. So there are a lot of problems around the amendment but it is hugely well intentioned, and I do not have a problem with people using filters. It is a good starter lock and will block a lot of simple things, but we need to go slightly further to block those who are technically savvy from getting round them—or those who persuade their parents that, because they could not get to a particular page on a website, they should override the filter for that website and unblock the whole thing. The convenience of the parent will probably win. How you get this to work is always the problem but that is not to say that we should not try.

[Lord James of Blackheath (Con)]

As a non-lawyer, may I intervene with a query? The phrase “adult” services is a colloquial euphemism. In my understanding, or non-understanding of the law, it is interpreted as to the literal use of the language. Would not it be unambiguous and better if it was just to say “pornographic”?

--- Later in debate ---

[The Lord Bishop of Bristol]

My Lords, I do not want to add too much to the way that the noble Lord, Lord Morrow, has framed his amendment today, but his point is worthy of serious scrutiny, simply because children living in households that are not serviced by the big four ISPs surely require the same level of protection as those in homes whose services are provided by the big four ISPs. Everyone in your Lordships’ House agrees that every child matters; I think that it is not at all controversial to say that.

It is a little confusing that the Prime Minister should seem so robust in his statement in the other place on 28 October, suggesting that the Government wanted to introduce legislation, yet the Minister—unless I misunderstand her—seems very happy to continue with a kind of voluntary regulation. I am not quite sure how that squares up. The point—and the noble Lord, Lord Morrow, makes it well—is that whatever we come up with cannot apply only to some children; surely it must apply to them all.

I would have thought we might regard it as good news that there is a need to introduce some legislation to prevent our approach to filtering being caught up by the new EU legislation, which provides us with an opportunity to correct a serious failing in our current arrangements. I hope that the Government—although I am starting to feel doubtful about this—might seize this opportunity with both hands.

I therefore put two questions to the Minister. First, I assume that the big four ISPs are saying to the Government, “We’re happy to continue providing filtering on the basis that we agreed, but only if you provide us with the requisite legal cover because we’re not prepared to be left vulnerable to litigation once the new EU net neutrality legislation comes into effect”. Will the Minister confirm that this is the point of concern, or at least a part of it? Secondly and more importantly, although she may have already dealt with this, I had thought that the deadline at the moment was 30 April but I think she has said that it has now been extended to December. I would be grateful if she could clarify that.

I hope that the Government are not going to produce an entirely new piece of legislation next year that they then rush through at high speed without the proper scrutiny of your Lordships’ House. That would be wholly unacceptable, and I would dearly love the Government to adopt the Bill.

[The Earl of Erroll]

My Lords, I want to say a few things at this point because this amendment refers to age-verification policies, which Ofcom is supposed to be producing. I do not want to say very much about it, but there are things other than direct adult content online. For example, we need to block the sale of pornographic DVDs, which can be supplied through several of the major sites where you can buy all sorts of other stuff that it is perfectly legal to buy. The problem is that you need to block at individual page level for a lot of stuff, otherwise people will get around this fairly easily.

The real problem is that filters do not do anything about the material they are blocking. They work on look-up tables, which are compiled by various people who look at websites, or individual pages on websites, and the filter goes through the list. But a filter is not a magic device that knows when somebody is looking at pornography. If the material is not in the table, the filter does not know about it. Someone has to keep the table up to date and there are organisations that do that, and they do it very well, or at least they do their best. However, we should not think that the filter is a silver bullet that will provide the cure. That is why we need somehow to incentivise the vendors and content providers on the internet—the people who deliver the material over the web—rather than the people giving access to the web. That is probably why there will have to be legislation to incentivise them to behave in the right way. We should have both positive and negative incentives, so that people who behave well get some advantage and people who behave badly have a disadvantage.

--- Later in debate ---

[Lord Framlingham]

The noble Earl obviously knows a huge amount about the subject and he is speaking in a way that I do not completely understand. At what stage does he think we should legislate? How long do we wait to get it as right as he would like it to be?

[The Earl of Erroll]

Being realistic, I suspect that the Minister’s timetable in the real world is probably very sensible. You can legislate hastily but then there will be huge arguments about it. It is a bit like the Digital Economy Act, which was rushed through. The measures in that to try to prevent people unlawfully downloading copyrighted material were not going to work in the real world. They caused a lot of chaos and, as a result, nothing happened because it was not possible to produce sensible regulations that would work and satisfy the courts and everyone else. Eventually, something got going but it is not brilliant, and it took the pressure off everyone to produce something that might have been a little better. Therefore, the Minister is probably being very sensible on this.

[Lord Framlingham]

Does the noble Earl accept that there is a huge difference between the problems that might arise from copyright and those that arise from damaged children?

[The Earl of Erroll]

I totally accept that. I was just using it as an example of where legislation has gone through in haste with very good intentions but it has not worked because it has not been thought through technically. Checking age is quite complex—for various reasons I prefer the word “checking” to “verification”. There are lots of ways of doing it but it is difficult to produce something that is workable in the real world. Credit cards are not the answer, and the net neutrality principle coming out of Europe will also cause problems. All sorts of things like that have to be taken into account. Getting it right in the long term for children’s safety is much more important than trying to rush through something that looks good. We should remember the saying “Legislate in haste and repent at leisure”.

[Baroness Howe of Idlicote]

I congratulate the noble Lord, Lord Morrow, on his amendment, which he moved so ably, not least because it highlights one of the key points that has been made repeatedly in debates not only on this Bill but on the many previous online safety Bills.

I have never been persuaded that the voluntary filtering agreement between the big four ISPs is anything other than a very temporary measure. In the first instance, I believe that filtering is sufficiently important to warrant a statutory foundation. In the second instance, I believe it is important for the Prime Minister to press the big four ISPs to introduce a robust filtering regime for the sake of the children in the house that they serve. If it is important for him to agree to do that then, as others have mentioned, it is equally important that he does the same for the children in houses served by other ISPs. Unless we believe that some children are more important than others, surely we must operate on the basis that all children are worth fighting for just as much as those serviced by the big four. If it falls to all of us in this current attempt to bring in an online safety Act to support and speak up for the children in this group, of course we will continue to do so.

In my view, the only sensible way forward here is an even-handed statutory approach, as set out in Clause 1. It should relate, as the noble Lord’s amendment proposes, to Ofcom’s reporting of filtering as well as to the filtering itself. If the Government now have to make statutory provision for filtering because of new EU legislation, it certainly would be indefensible not to apply the new provision to all providers. With this in mind, and as I and others have said, we would be more than happy for the Government to take aboard and use this part of the Online Safety Bill.

--- Later in debate ---

[The Earl of Erroll]

My Lords, we have been talking about payments. I agree entirely that the big challenge is everybody moving offshore, and so the problem becomes foreign websites supplying pornography. The Committee is quite right about that. But I thought I ought to comment on the business of processing payments. One thing became apparent to us when we began discussing online age checking—and we are calling it that rather than age verification, because verification is tied up with identity. We need to separate the two because one is an attribute and the other is identity. I do not want to confuse the two, but I will not give the Committee a long lecture about that.

The point is that we soon discovered that there is an awful lot of stuff out there for free and therefore payment does not come into it. If we want to protect our children, we have to do so when no payment is involved. The very fact that someone can pay proves that they are at a legal age to watch this sort of stuff, but actually the big problem is the stuff that is out there for free. That is what we are really trying to block. The steering group of the BSI has representatives from the identity world, the ISPs, child protection charities, tobacco, e-cigarettes, alcohol, gaming, gambling, and academia, and government observers. The trouble with this issue is its complexity. I want to say briefly that payments are a bit of a red herring. On the other hand, blocking foreign pornographic providers is absolutely right and needs to be done.

[Lord Framlingham]

I am sorry to keep picking the noble Earl’s brain, but for the purposes of today’s debate, is there any intrinsic difference between the gambling industry and the pornography industry?

[The Earl of Erroll]

Yes, there is, interestingly enough. It is to do with the law. Because of anti-money laundering, the gambling industry has to do client checks; it has to behave almost as if it were a bank. As a result, companies have to be able to prove the identity of the person. For various social reasons, it is felt that it is unfair for people to have to declare their identity publicly if they are looking at adult content which it is perfectly legal to watch, or buying alcohol and so on. For instance, if a Muslim buys alcohol and the mosque gets to know about it because their identity had to be declared and retained publicly, they might suffer greatly. Equally, if a Cabinet Minister happens to view some pornography or adult material, that is perfectly legal but, if certain newspapers were to find out, the Minister’s career would be destroyed overnight. This is the challenge and the difference. We have to remember that this stuff is legal for the over-18s, but there are social pressures and public opinion, which we may or may not agree with, so I think that we have to protect people’s privacy.

[Lord Framlingham]

I am sorry to ask again. The example that has been given mentions embarrassment, but it is not technically illegal.

[The Earl of Erroll]

The example I have given is one that is career-destroying. The knock-on effect of that could involve all sorts of family repercussions to do with children in school because Daddy or Mummy has just had their career destroyed. We sometimes forget the effect on a family as the result of something that, while it may be regarded by some as socially unacceptable, is perfectly legal. We need to think about that at the parliamentary level.

[Baroness Thornton]

My Lords, that is exactly the point. The noble Earl, Lord Erroll, as ever is championing an industry which takes the view that, if you cannot do everything, you do not do anything. This is about doing something.

[The Earl of Erroll]

No, I am not trying to champion the industry, I am trying to protect children properly. The point is that this Bill is a great idea and a great effort, as long as it does not mess up the field for doing something about it properly. The Bill will not actually cure some of the root problems, but there are elements of it which should go into some proper legislation. I entirely agree with the principles and thoughts behind it, and I have no problem with them, but I want something that works in the real world and which is not going to be bypassed because some of the solutions are too simplistic. That is the challenge, and hence the complexity. I hope we will see legislation on this subject next year that will allow for some real action to be taken which will protect children. I am not trying to champion an industry, but I am trying to draw lines.

[The Lord Bishop of Bristol]

My Lords, I thank the noble Earl for his explanation. I do not think that anyone in this House actually believes that what we will end up with will be—I think he has used the phrase—the silver bullet. What we want is to try to be as watertight and robust as we can. It is quite right of the noble Earl to point out to the Committee that it is inconceivable that we will be able to cover everything. I think that the issue is this: is what we have in front of us the right way to go ahead in trying to protect our children in the best way we possibly can? I believe that it is.

[The Earl of Erroll]

Perhaps I may respond briefly. Because I know that the Government fully intend to bring forward legislation next year, I did not want to get too involved in trying to sort out this Bill. I am afraid that I would separate the ISP and the filtering completely. I would put in proper provisions about age checking and vendors at the point of sale, look at the point of access on the internet, and start to construct something that would be future-proofed—that means as far as we can see at the moment. We need to block the loopholes, so I would separate filtering from the responsibility of vendors not to break the law. Vendors are in effect breaking the law at the moment, but the problem is how to stop them. There are websites selling stuff which should not be sold to minors, but the problem is in enforcement because those websites are getting around the rules. We have to write a slightly more complex Bill so that some things are separated out.

The concept behind filters in this Bill is absolutely fine and is there to underpin stuff. I have no problem with that, but I do not want people to think that it is the real solution to the challenge of protecting our children. We have to stop the websites and prevent access to them. It has to be done at the point of sale much more than just general access to the internet.

[Baroness Benjamin]

My Lords, I agree with much of what has been said so far, especially by the noble Baroness, but while we are trying to find solutions let us remember that childhood lasts a lifetime. What children see will stay with them for ever. As I said earlier, I visited Rye Hill prison in Rugby, and many of the prisoners told me about what they saw when they were children. We need to move forward as swiftly as possible. We might not get it all right, but we have to do something quickly—just as the gambling industry and others have done. When it comes to children, what is the difference? We need to protect them now.

Psychoactive Substances Bill [HL]

Earl of Erroll Excerpts

Tuesday 30th June 2015 Lords Chamber

[Baroness Meacher]

My Lords, I want to make a brief but important point. In responding to the noble Lord, Lord Norton, will the Minister address his mind to not only the illogicality but the danger of exempting alcohol from the scope of the Bill while banning relatively very safe psychoactive substances? If this ban works at all—the Minister knows that I am pretty sceptical about it—the Government would, in effect, be preventing or discouraging very strongly young people from taking relatively very safe substances while encouraging them, one could argue, to drink alcohol, which we know is a killer drug. Therefore, I ask the Minister, in responding the noble Lord, Lord Norton, to address that particular point about the danger of banning substances while leaving alcohol exempt.

[The Earl of Erroll (CB)]

My Lords, I want to make a quick point because the subject of alcohol has been introduced into the debate. Although I entirely agree with my noble friend Lady Meacher about not classing all drugs together, the idea that we should include alcohol in this would, equally, cause huge problems. Every society in the world has always had something that allowed them to let their hair down at parties. Introducing the subject of alcohol into this sort of debate always makes me think of the definition of a puritan as someone who has a haunting fear that someone somewhere might be enjoying themselves. I get very worried when we try to cover all these things and try to stop everything.

As to the point about increasing the price of alcohol and unit pricing, some time ago some young people pointed out to me that if you increase the price of alcohol, the price of drugs becomes relatively cheaper. It drives people away from something over which we have relative control, which we deliver in controlled concentrations that we understand, into an area over which we have less control. That is very dangerous. We should be careful about trying to alter people’s behaviour in relation to alcohol by pricing mechanisms. There are a lot of people who may be medically qualified, but they do not understand market pressures. That is the only word of caution that I shall say on this matter.

Data Retention and Investigatory Powers Bill

Earl of Erroll Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Butler of Brockwell]

My Lords, having supported the Minister in response to the noble Lord, Lord Davies, and having criticised him in response to the noble and learned Lord, Lord Hope, in this case I support the Government and agree with those who oppose this amendment.

If we pass this amendment we would find ourselves in exactly the same danger as we are with the provision of this Bill. We would be presented with a Bill in the latter part of 2016 that would be very urgent and the House would have inadequate time to consider. Although two and half years seems a long time, let us consider what is going to happen in the mean time. The independent reviewer of terrorism legislation has been asked to carry out a thorough review of the RIPA legislation. I understand that his timetable is to try to complete that by the time of the Dissolution of this Parliament, by May of next year.

The Intelligence and Security Committee is similarly carrying out a review. This autumn we plan to have public hearings where those who are critical of the legislation can have their say. I hope that that will generate a public debate and allow these issues to be widely discussed; that will be very valuable. We also hope to reach a conclusion by the end of the Parliament. Indeed, we had better, because there will be a new committee after that. The election will be in May of next year. The new Government will come in with quite a short time before the Summer Recess, when there will be other urgent things to do. It has been suggested that there should be a Joint Committee of the two Houses to look at the conclusions of the reviewer of terrorism legislation, and those of the Intelligence and Security Committee. It will want to have time to consider that. It really will not be practicable to reach a position where properly considered legislation can be introduced until we are well into 2016.

Two and a half years may seem a long time, but when one considers that those are the sensible and necessary steps before legislation is introduced and passed, it follows that the end of 2016 really is the earliest possible date when we can expect to have properly considered and satisfactory legislation in place of the Bill that we are passing today.

[The Earl of Erroll (CB)]

My Lords, I have not intervened earlier because I have been doing lots of other things, but I wanted to intervene on this amendment and say that I think that this is a sensible approach. I cannot believe that you can produce this Bill within a couple of weeks and then say that we cannot do something better in a year and a half. It seems that we are trying just to push the boundaries out, and the question is why. It tends to be the people who can see the challenges, who come from a senior executive background, who are trying to get this sorted out, and I can see their point.

We need to consider some of the principles behind the amendment, which is why I fully support it, and we need to discuss those principles very early on. The issue is not the technicalities in the Bill, the definitions of communication data and metadata; we know that we need to do this for the purposes of finding terrorists, enforcing the law and stuff like that. The real challenge is posed by that old bit of Latin—which I might as well use, as we are now using Latin—sed quis custodiet ipsos custodes? Who watches the watchers? Who guards the guardians? We should remember the line that is supposed to come after that, which I will say in English: they keep quiet about the girl’s secrets and get her as their payment. Everyone hushes things up. That is the trouble. If corruption runs high enough, you get the Cambridge set—was it four or five by the end of it all? You get J Edgar Hoover.

That sounds as if I am painting a hugely black picture, but there is danger there, even more so now that we have rolled together—for the purpose of catching terrorists and people in serious and organised crime, which we have had to do—what used to be our external forces, GCHQ and MI6, responsible to the Foreign Office, and our internal police, which was MI5 and is now basically the NCA. In America the CIA and the FBI were kept separate. We have started to bring our forces together because of things falling between the cracks. This means that we are potentially giving huge powers to internal police. Therefore, how those at the top are to be watched is of vital importance.

[Lord West of Spithead]

My Lords, I am sure that the noble Lord is not for a moment suggesting that corruption is involved in this. I understand why there needs to be proper oversight, but surely the noble Earl does not mean to mention words like corruption in connection with the way in which this matter is being approached.

[The Earl of Erroll]

I am sorry; I am not suggesting that there is any at the moment at all. There has been historically—the Cambridge set. There are problems with people at the top from time to time.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

Treason.

[The Earl of Erroll]

Yes, treason rather than corruption. I do not mind what you want to call it—whatever. All I am saying is that we in Parliament are here to protect the people. We happen to have the senior members of the Executive here as well, which is very useful for holding them to account. But they have to be double-hatted and remember that they are putting in place processes for their successors.

The noble Lord, Lord Rooker, made the point about the public needing to be reassured that the people at the top are being watched. We are seeing enough conspiracy theories emerging in the press at the moment about rings protecting themselves. We do not need any more of those suggestions. That is why I think we need an earlier debate on this. It is not about the technical part of it; it is about reassuring the public that we have the right checks and balances at the top. That is not technical; it is about how we watch people.

[Lord Paddick]

My Lords, I want to say just two things. The majority view of this House yesterday at Second Reading was dissatisfaction with the lack of time for public consultation and parliamentary scrutiny of this legislation, not dissatisfaction with the sunset clause. The last thing we need to do is to recreate that problem by not allowing enough time for public consultation and parliamentary scrutiny of the whole area of RIPA and the associated legislation.