Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013

Earl of Erroll Excerpts

Wednesday 17th July 2013 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013 and the Protection of Freedoms Act 2012 (Guidance on the Making or Renewing of National Security Determinations) Order 2013, along with copies of the attendant surveillance camera code of practice, which I will refer to as the code, and the guidance on the making or renewing of national security determinations, which I will refer to as the guidance, were laid before Parliament on 4 June and 24 June respectively. Both orders are made under the Protection of Freedoms Act 2012. This Act delivers important changes to the law, ensuring that we strike the right balance between respecting the rights of individuals and protecting the public, which reflects a key commitment of this Government. I will explain each order in turn.

The first order, on the surveillance camera code of practice, follows on from Section 30 of the 2012 Act and reflects a coalition agreement commitment to the further regulation of CCTV. The Government support the use of CCTV, automatic number plate recognition—ANPR—systems and other surveillance camera systems to cut crime and protect the public. In general terms, the public support their use. However, that support is conditional on these cameras being used proportionately to meet a legitimate aim and being used effectively in meeting their intended purpose. For too long we have seen the use of CCTV and the advance of technology develop without a proper regulatory framework, with ever greater potential for surveillance and ever greater potential to interfere with citizens’ rights and freedoms.

This code seeks to reassure the public about the use of surveillance camera systems and applies to England and Wales. Section 34 requires the appointment of a Surveillance Camera Commissioner, whose role is to encourage compliance with the code, review its operation and provide advice about it. Noble Lords may be aware that the Secondary Legislation Scrutiny Committee has considered this draft order, and the draft code, and has drawn the special attention of the House to these documents on the basis that they may imperfectly achieve policy objectives. My belief is that bringing the code into force will be a critical step in our incremental and measured approach to regulation.

We have worked closely with our partners including the police, local authorities, the Information Commissioner, the Chief Surveillance Commissioner and the Surveillance Camera Commissioner in developing this code. The code is based on 12 guiding principles which are applicable to any overt operation of CCTV in public places. Those who work to these guiding principles will be better placed to reassure the public about their intentions and to share images and information of evidential value with the police and the criminal justice system to help investigate crime and bring criminals to justice. The commissioner will provide additional information which complements the guiding principles and helps system operators turn them into reality.

We have always been clear that our approach to further regulation in this area is to be incremental and measured, starting with state surveillance and getting the basics right, then taking further steps as necessary, informed by advice from the Surveillance Camera Commissioner. This order also exercises powers under Section 33(5)(k) and seeks to add the three non-territorial police forces—the British Transport Police, the Civil Nuclear Constabulary and the Ministry of Defence Police—and the Serious Organised Crime Agency to the list of relevant authorities which will be placed under a duty to have regard to the code from the outset. Each has been consulted over the proposal and each has consented to it. Our intention in expanding the list to additional forces is to provide further assurance to the public that overt surveillance by the state is being effectively and transparently regulated.

I turn to the second order before the Committee today, which brings into force the guidance on the making or renewing of national security determinations as provided for by the Protection of Freedoms Act 2012. This order implements an important element of the Government’s commitment, set out in the coalition’s programme for government, to restore balance between the protection of individuals’ rights and protecting the public in respect of police retention of DNA and fingerprints.

We propose to commence the substantive powers in the 2012 Act from October this year. This will mark an important change. From this point, with the exception of convicted individuals, DNA and fingerprint material will not be held indefinitely. This guidance deals with a limited exception whereby it may be necessary to extend retention for the purposes of national security. We want to ensure that, in exercising their powers to extend retention by the making of a national security determination, chief officers and chief constables are doing so in an open, transparent and consistent way. This guidance seeks to achieve that. The guidance is introduced pursuant to Section 22 of the 2012 Act and is applicable throughout the United Kingdom. It sets out the basic principles underpinning the new powers, specific requirements governing consideration of necessity and proportionality and clear processes for making or renewing a national security determination, including appropriate direction as to the responsibilities of chief officers or chief constables.

The Act establishes for the first time a comprehensive regime for the retention, destruction and use of biometric material held for national security purposes. This regime is to be independently overseen by the new commissioner for the retention and use of biometric material—the Biometrics Commissioner, Mr Alastair MacGregor QC. The retention of biometric data by the state is a justifiable interference with the right under Article 8 of the European Convention on Human Rights where it is necessary and proportionate to do so and where it is in accordance with clearly defined law. The Act’s provisions, coupled with the guidance and the robust independent oversight we rightly and confidently expect from the Biometrics Commissioner, in my view achieves this objective.

We consulted extensively over the preparation of the code and the guidance which are before your Lordships for consideration today. The code and the guidance were published in draft form on 7 February and 26 March respectively for public consultation. There was broad support for these changes. A summary of the consultation responses and resultant changes made for each have been published on the Home Office’s website.

These orders are intended to build and maintain public confidence in both overt surveillance camera activity in public places and in the retention, destruction and use of DNA and fingerprint material held for national security purposes now and in the future. I commend them to the Grand Committee.

[The Earl of Erroll]

My Lords, I will say a few words because this is an area in which I take an interest. In principle, I have no trouble with using surveillance cameras around the place to find out what happened after an event and, in some cases, to anticipate what might happen. The only thing that has ever worried me is when things are linked together to try to surveil and track a population around. From that point of view, ANPR cameras could be used for purposes other than traffic management and could start to be used for tracking people. A lot of that stuff involves data protection, so all this looks fairly innocuous.

The main thing that I am worried about is whether it really does anything. At the end of it all, these are all good words. Are we just adding more cost and stuff than can be more effectively used elsewhere? It looks like we have just invented a couple of extra posts, which will be very nice for someone; it will do a bit more box-ticking so everyone will think that it has all been covered. However, if it starts being really effective, it will interrupt other people’s jobs where they do need cameras, and make them more difficult.

So I am giving a few words of caution: let us not waste public money on something that is merely a cosmetic exercise. At the same time, many of the issues that do matter in this are covered by the Data Protection Act, for instance accurate databases and things like that. So they are already covered elsewhere. Will having an extra commissioner really make a difference? It is obvious that I am sceptical about it. It does not really address the big problem about the surveillance state and things like that, but we do not have that yet, thank goodness.

[Baroness Smith of Basildon]

My Lords, I first thank the noble Lord, Lord Taylor, for his helpful explanations and information. Just prior to the Committee, I indicated to the Minister that we are considering praying against these instruments. I apologise if he was not told beforehand, although the Whips’ Office knows. In future I would talk to them directly. These are important issues.

I want to offer the Minister the opportunity to answer my questions first, because that might alleviate some of my concerns. His answers will be very important in that regard. The noble Earl, Lord Erroll, hit the nail on the head with some of the concerns that I want to raise as well. The Minister referred to our own Secondary Legislation Scrutiny Committee, which was quite damning about this order’s ability to achieve the objectives that the Government set out. It stated:

“While the principles themselves are commonsense, some of the explanation is vague, with frequently used terms such as ‘proportionate’ or ‘appropriate’ left undefined in the context”.

Those are wise words. I would impress on the Minister the committee’s final comment, which stated:

“The House may therefore wish to question the Minister about the Government's plans for the wider application of the code and to invite the Minister to clarify how its benefits will offset the costs of the additional bureaucracy involved”.

This SI increases costs and bureaucracy to local authorities and the police of installing CCTV. The Explanatory Notes claim that this is a policy decision motivated by a desire to halt,

“the extent to which private lives are exposed to ever greater scrutiny by other individuals, organisations or the State, leading in some instances to a potential exposure to criminality, or more generally, to an erosion of personal privacy”.

That is the point that the noble Earl, Lord Erroll, made. Can the Minister say where in this order is anything that restricts the use of CCTV by individuals or private companies and makes any difference to the potential exposure of criminality that the Government have identified? I am not sure what that means in the context of this order. It may be a government objective, but it is nowhere in this order that I can find, because only public bodies—mainly the police and local authorities—are bound by the order before us today. The consultation and the order will not prohibit the installation of CCTV. What it will do is increase the paperwork and bureaucracy, making it considerably more expensive.

The Government have made a commitment to lean government, and I do not think that it was just a reference to Eric Pickles’s diet when the Chancellor said it. The impact assessment states that this extra flood of bureaucracy is not subject to the Government’s principles of “one in, two out”, in terms of regulation. Why is that? What is the point of having such a policy if the Government can then simply exempt a regulation from it? That makes a complete nonsense of the policy. The Home Secretary said:

“After years of bureaucratic control from Whitehall … this government trusts you to fight crime”,

but apparently not where CCTV is concerned. Here, the Home Office is creating 25 pages of statutory guidance for local authorities to go through—25 pages of hoops for the police to jump through before they can install CCTV.

Legislation: Data Retention

Earl of Erroll Excerpts

Wednesday 20th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

I will just make it clear that the Bill does not provide for the storing of the content of a communication, including the attachments to an e-mail. That would be interception, which is governed by a separate set of rules. Although we will seek to require providers to retain more data under the Bill, the amount of physical space and the electricity required for these data stores will be relatively low, particularly as providers may well take the opportunity to update to newer technology.

[The Earl of Erroll]

My Lords, as the Government are going to keep the address of every single website that someone visits, and where they are from, should the assessment not be talking about exabytes or yottabytes of data, not just the smaller amounts that the Minister is talking about, as I understand that they will have to be retained in such a way that they can be accessed by various services?

[Lord Taylor of Holbeach]

The noble Earl gets to the heart of what the communications data Bill is about. It is about who was communicating, when and from where, and how and with whom. It is not about the content of the communication, which CSPs will not be required to retain. To emphasise why this material is required, it is used in the investigation and prosecution of a broad range of crimes, including terrorism. CD has played a role in 95% of all serious organised crime prosecutions and every major security or counterterrorism operation over the past decade.

Government: Procurement

Earl of Erroll Excerpts

Monday 25th June 2012 Lords Chamber

[Baroness Verma]

I think that the noble Lord has answered his own question. I am sure that the Treasury is not aware of all reports but, again, I will raise this one with it.

[The Earl of Erroll]

Is the Minister aware that smaller innovative companies often have great difficulty joining in on some government IT projects because of the stranglehold that the large systems integrators have on them? Many of the regulations make sure that smaller companies cannot join in and bid for these projects, and many of the frameworks even exclude them from doing so.

[Baroness Verma]

Absolutely—the noble Earl identifies a serious problem. We have formulated the G-Cloud strategy so that smaller businesses can contract out as well as tender for contracts alongside the large companies. The PQQ requirement has also been ended where contracts are for less than £100,000. We are asking for much less information from smaller companies so that they do not stumble at the first block.

Criminal Records Bureau

Earl of Erroll Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Henley]

My Lords, I do not have the precise words that I used on that occasion, but the noble Lord is probably right to imply that we were offering discretion to the police.

[The Earl of Erroll]

What percentage of these certificates would reveal either a criminal record or information that would bar these people from working?

[Lord Henley]

My Lords, I cannot answer that question, but I can say that in the 10 years in which this system has been running some 130,000 potentially unsuitable people have been prevented from working with children and vulnerable adults. The noble Earl can use that figure against the figure of 31 million and work out his own percentage.

Protection of Freedoms Bill

Earl of Erroll Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Marlesford]

My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.

However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.

We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.

[The Earl of Erroll]

My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.

Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle—to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.

I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action—a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.

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[Baroness Walmsley]

My Lords, I support the amendment of the noble Lord, Lord Bichard. It may be moderate and proportionate but has the potential to close a dangerous loophole in the Bill. Both he and the noble Lord, Lord Harris, have explained clearly the issues of secondary access, so, it being Third Reading, I do not intend to repeat them.

I do not support the amendment of the noble Lord, Lord Harris of Haringey. As he hinted, it is intended to highlight the fact that it is impossible for any employer or organiser of volunteers, however conscientiously they supervise a person working with children, to supervise them when they are off the premises. That leads us to the point that we have to ensure that the people who are on the premises working with children are safe to do so.

I hope that my noble friend will be able to assure the noble Lord, Lord Bichard, that his amendment is unnecessary. I hope that he will give him 100 per cent assurance, not just 80 per cent assurance. By that I mean that barring information will be made available to conscientious volunteer organisers or employers of paid employees.

We should cast our minds back to when the Safeguarding Vulnerable Groups Act was introduced. It was brought in because it was discovered that paedophiles were working in schools. At that time, the hapless Minister was made responsible. As a result, we set up an Act of Parliament to put in place a committee of experts to decide whether the information available made it possible to say whether that person was safe to work with children.

As the noble Lord, Lord Bichard, pointed out, only 80 per cent of the people who have been decided by the expert panel to be unsafe are known to the police. I point out that the enhanced CRB check contains information about not just charges and convictions but other information only if the police, at their discretion, think it is relevant to release it.

That expert committee has barred one in five people not as a result of police information but because of other information that the police do not know and therefore could not release even if they wanted to. Those experts believe that the information passed to them is serious enough to bar that person from working with children. Given that you cannot supervise a person 100 per cent even on the premises, and you certainly cannot supervise a person off the premises, it is only right that conscientious employers who want to do the right thing for the young people in their charge should be able to have that information—not just the police information but the information from the expert committee, which we as a Parliament have set up, and which believes that that person is not safe to work with children.

That is particularly important given that we are taking away certain roles from regulated work. That means that organisations such as FE colleges cannot under the Bill get that information about some of their employees. That beats me. I cannot for the life of me figure out why the Government feel that it is appropriate to treat young people in colleges differently from those very same children when they go to a school for the rest of the week. However, that is beside the point, because the amendment of the noble Lord, Lord Bichard, would allow employers in colleges to obtain the information that they are crying out for to enable them to protect young people in their charge. I hope that my noble friend will be able to give us a 100 per cent assurance that those risks and loopholes will be closed.

[The Earl of Erroll]

My Lords, everyone is singing from the same hymn sheet on this matter. These are very well meaning amendments and I thoroughly approve of the sentiment behind them but I should like to strike a note of caution: I am not sure that they will necessarily work in the real world because rules do not protect people.

I think that we are going to get the same problem as arises with the Health and Safety Executive. I know that applying for CRB information is supposed to be voluntary but colleges will protect themselves defensively by automatically asking for checks on everyone. Such requests will become standard and we will be back where we were. The purpose of the Bill is partly to try to reduce the number of checks being carried out, as they have been blocking perfectly good and well known people working in situations where they might come into contact with children or whatever. We were going so far overboard that something had to be done to roll the situation back, and we have to be careful that we do not end up back where we were.

The other thing is that we must think about how effective all this checking is. We know that several thousand records are incorrect, with people having a black mark against their name because the name given is wrong or whatever, but the trouble is that we do not know who they are. They are being criminalised when they are not criminals at all and have never been in contact with children in any way. They are not even victims of hearsay.

The second problem is that 20 per cent of the people on the register, I am horrified to say, are there as a result of unverified hearsay. That may be perfectly all right, as I expect that a large proportion of those people will have done something wrong. However, what about those who cannot do anything about it because they do not know that someone—possibly for a thousand and one reasons—has given information which could be blocking them?

My final point is about keeping our eyes open. It has to be remembered that in many instances someone without a criminal record will just be someone who has not yet been caught. Therefore, just because they do not have a criminal record does not mean that they are okay, and that is why I think that we have to start keeping our eyes open. The trouble is that we trust too much in box-ticking, and that then also constrains the people who are trying to protect the children—the governors and teachers. My wife is a senior school governor and was recently involved in a case where she had to go to court because the school in question was trying to fire a teacher. This is an example of something happening off the premises. It involved a friend of the teacher who was behaving inappropriately towards the children. The teacher’s union defended the teacher’s right to continue to work at the school, despite the teacher having shown appalling judgment. The school was terrified of losing the case. My wife spent a huge amount of unpaid voluntary time in her busy day learning about the law and how to deal with the case in court and so on because she was going to have to attend the hearing. If she got it wrong, the teacher would be allowed to continue to be in close contact with the children. Therefore, you need to keep your eyes open.

We can often detect the bad eggs but the problem is that employment law does not let us do anything about it. I think that we need to look at how employment law restricts our ability to protect children, because you cannot say to someone, “You don’t fit in. Your face doesn’t fit—we think there’s something wrong about it”; you have to continue employing them. Although it may not be a matter for this Bill, I think that some effort should be made in that direction, rather than just trying to tick more boxes. The databases are inaccurate and, on their own, will not protect children.

[Baroness Howarth of Breckland]

My Lords, I support the amendment of the noble Lord, Lord Bichard, and I understand why the noble Lord, Lord Harris, has tabled his amendment as an example. I say to the noble Earl who has just spoken that I, too, live in the real world—having spent more years in it than I am prepared to admit—dealing with victims and abusers. That is why I believe it is crucial that the Government listen very carefully to what is said on this amendment. It is only describing close and regular contact, and that is the absolute key.

This week, the Lucy Faithfull Foundation celebrates 20 years’ work. As the noble Lord will know, Lucy was a very eminent Member of his Benches. During that time, the foundation undertook all the background work that has led to the understanding of grooming. Other organisations have picked up that work and developed it, but the basic work was developed and continued by that foundation. That work informs the knowledge of grooming and how children develop relationships and trust in adults whom they get to know in settings where they believe that they are safe. Indeed, I remind the noble Lord that some children are seriously abused within those settings. I cite the example of a teacher who regularly abused a number of small children in a classroom, until he was found out. These people are clever; they are totally able to deceive; and we have to recognise that the law has to be as clever as they are.

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[Lord Sutherland of Houndwood]

My Lords, the speeches that we have heard from two very senior practitioners in relevant fields make a powerful case. I shall not run through their arguments again, nor the ones that I put forward during the previous stage of the Bill. I simply underline the fact that if people of this calibre are expressing concerns and those concerns could be dealt with by using the government procedure of post-legislative scrutiny to inform practice, that is a very reasonable request and I hope that the Minister will feel free to accede to it.

[The Earl of Erroll]

My Lords, I, too, spoke about this danger at an earlier stage of the Bill, and I think the amendment is sensible. Sometimes there are unintended consequences when we make rules, but in this case, because people have seen that there are almost certainly going to be some adverse consequences for UK research establishments, it is sensible to delay implementing this part of the Bill until we have thought about it a little harder and seen some results from other places.

[Baroness Brinton]

My Lords, I want to add to the comments about the complexities of the data sets, which the noble Baroness, Lady O’Neill, outlined earlier. I am grateful for the Minister’s comments about addressing this after post-legislative scrutiny. Does he have any idea when that is likely to conclude and therefore when there might be a review? I thank the noble Lord, Lord McNally, for his agreement to meet me and my noble friend Lady Hamwee outside the legislative process to see whether we can get some clarity on the whole vexed issue of exemptions with the advice to higher education institutions of the Information Commissioner.

Protection of Freedoms Bill

Earl of Erroll Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Wills]

My Lords, both amendments in this group were debated in Committee, so I will not detain your Lordships long by rehearsing the arguments again. I am bringing them back because they will improve the Bill by protecting citizens' existing rights to transparency —although they will not extend them—in ways that are consistent with the Government's overall objectives. I am bringing them back also because so far the Government have offered no good reason for rejecting them.

Amendment 55ZA aims to cut down on delays in responding to freedom of information requests, which can often defeat the intent of the legislation. Such delays can be of more than a year. It is in line with the Information Commissioner's guidance that normally an extension should not be needed but where it is, it should not exceed a further 20 working days. Too often, the guidance is ignored. The amendment will make it more difficult to do so.

In Committee, when I withdrew an associated amendment, I asked the noble Baroness, Lady Stowell, to contact the Information Commissioner for evidence about the problems that he had encountered from delays in the process of policing the Freedom of Information Act, particularly in relation to the offence of altering records with intent to prevent disclosure. This is a most serious problem for the Information Commissioner in carrying out his functions in accordance with the wishes of Parliament. I would be grateful if in reply the Minister could tell noble Lords what the outcome of that contact has been.

Amendment 55ZB tackles a consequence of the Localism Act, which will restrict public access to information that the public currently have a right to gain access. As public services currently delivered by local authorities and other public bodies are contracted out—as increasingly they will be under the provisions of the Bill—they will be removed from the scope of the Freedom of Information Act. The amendment would restore the status quo: no more than that. So far, the Government have given no adequate justification for resisting the amendment. The amendment is proportionate. Very small businesses, for example, will not be caught by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, such as trade secrets or information likely to prejudice commercial interests.

The Government’s response in the past—I know the Minister will recognise this—has been that they would prefer to consider these amendments in the light of post-legislative scrutiny of the Freedom of Information Act. I understand that approach. As a delaying tactic, it is pretty good, and on the surface, at least, it looks plausible. However, there are two problems with it. First, the Government’s argument would be more plausible if they had not already done what they say they should not do: that is, dealt with transparency in local government piecemeal through the Localism Act and pre-empted the results of post-legislative scrutiny of the Freedom of Information Act. They have done that because the Localism Act already changes the status quo. It does so by weakening transparency in local government, not by strengthening it.

The second problem is that, should the post-legislative scrutiny and the Government’s response to it conclude that there should be action in these areas, and they may well do that, it is likely to take years before an appropriate legislative vehicle can be found to implement these changes. Your Lordships will be well aware of the complexities of the legislative progress and of how long it takes legislation to come before Parliament. There is no guarantee at all. I will be delighted if the Minister can correct me in her response and tell me that the Government already have plans to bring forward this legislation, but just not in the Bill. I would be delighted if that were the case. The reality is more likely to be that it will take years before an appropriate legislative vehicle can be found. That was certainly the experience of my party when we were in government and I doubt whether it is very different now.

In the mean time, over those years, despite the coalition agreement pledging to increase transparency, the right of citizens to have vital information about public services discharged in their name, for which they have voted and for which they pay, will be weakened, not strengthened. I hope the Government will now take the opportunity that these amendments offer to secure greater transparency in the government of our country for the people we all serve and accept these amendments. I beg to move.

[The Earl of Erroll]

I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.

In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.

I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.

[Lord Lucas]

I quite agree that this is something we need to watch. We have similar problems in the health Bill where, for reasons I entirely approve of, activities that used to be done by state bodies may in future be done by private ones. We need to make sure that that does not mess up our objectives on freedom of information, which are, I believe, and certainly should be, towards greater access to information rather than less.

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[Baroness Stowell of Beeston]

I can certainly confirm that the figure I quoted for the extension of requests under the public interest test relates only to central government. As to general requests under FOI, these bodies were monitored by the MoJ. I am afraid that I do not have to hand which bodies they are. The figures do not cover local government.

However, I accept that there is room for improvement, especially where the deadline is extended to allow consideration of the public interest test. The Information Commissioner is watchful of public authorities where timeliness is an issue and has taken effective action in this area. In 2011, the commissioner announced that out of 33 bodies being monitored in relation to timeliness issues, 26 had made sufficient improvement to be removed from his watch list. While further action is required from the remaining bodies, it is clear that the Information Commissioner’s Office has been effective in improving timeliness.

The introduction of new statutory deadlines is a potential way of strengthening the Freedom of Information Act, as the noble Lord has put forward, provided that it does not lead to hasty decisions that are not fully informed. An absolute limit of 40 days raises some concerns about the potential for such an effect and therefore we need to give the impact of changes of this type full consideration before their introduction. For that reason, I cannot accept his amendment today.

As the noble Lord has predicted I might say, but not for the reasons he suggests, this is something that I strongly believe should be properly scrutinised and considered in the course of post-legislative scrutiny, which is now under way by the relevant Select Committee of the other place, chaired by the right honourable Alan Beith. I certainly will ensure that he receives the official record of our debate today.

It is also worth pointing out that I genuinely think that the proposal put forward by the noble Lord, as much as it has merits, requires very careful consideration. I will look forward to his contribution to the process of post-legislative scrutiny that is ongoing.

Amendment 55ZB, again in the name of the noble Lord, Lord Wills, seeks to extend the Freedom of Information Act to information held by contractors working on behalf of public authorities about the performance of those contracts where those contracts are worth more than £1 million. The noble Lord has found support today from the noble Earl, Lord Erroll, my noble friend Lord Lucas and the noble Lord, Lord Collins, on this issue. As the noble Lord, Lord Wills, is aware, the Government have extended the FOI Act and are taking steps to extend it further. We have made an order under Section 5 of the Act extending its scope to, among others, the Financial Ombudsman Service. We have commenced consultations with more than 200 further bodies about their possible inclusion through future Section 5 orders and we intend to consult more than 2,000 housing associations later this year in relation to their possible inclusion.

In addition, Clause 103 of this Bill will extend the Act to companies wholly owned by two or more public authorities, thereby removing the anomaly whereby a company is subject to the FOI Act only if wholly owned by one public authority but not by two or more. I hope that the noble Lord recognises that these are significant changes.

I understand the point that the noble Lord and others have made today that as services are subcontracted out, whether by local government or by other public services which have been mentioned today, the public should not be left short of any information that might be needed to assess the effectiveness and efficiency of those services. But as I mentioned to the noble Lord in Committee when we debated this, even when a service is subcontracted out, it is still the responsibility of the public authority in terms of the accountability for that service to the public. It is the relevant organisation which should be held to account. In the way in which the contracts are constructed, it should be possible for the public to receive from the contracting authority the information that is needed in order to ensure that the services being carried out and paid for with their taxes are actually performing as they would want them to.

As my noble friend Lord McNally stressed last year, it is important to ensure that changes to the way public services are delivered do not undermine our pledge to increase openness and accountability, and there is certainly a challenge to be met here. I would like to restate that our continued opposition to this amendment does not stem from any lack of commitment to the cause of increased openness and accountability. We are already considering this issue and it will be further considered in the response to the Cabinet Office consultation on the draft transparency and open data strategy.

I may have covered this point, but I want also to say to the noble Lord that there is a provision in the FOI Act as it stands that extends its scope to public bodies. I believe that it is set out in Section 5. If and when other public authorities, bodies or organisations should be covered by the Act, we do not need new legislation, or we will be subject to the kind of delay that he seems to think post-legislative scrutiny would bring about. We actually have a mechanism to ensure that as and when we feel it is right and proper to extend the Act, we can do so.

[The Earl of Erroll]

My Lords, I have a brief question for the noble Baroness. Is she saying that public authorities should be writing into their contracts a provision that would allow for freedom of information requests, and that is what she is relying on rather than it being put into the law?

[Baroness Stowell of Beeston]

No, I am not saying that. I am not in a position to go that far because it would take us into an area on which I do not have the authority to speak today. I am making two separate points. One is that a public authority is the body which is accountable to the public for any services that it might subcontract out. In the course of its contractual arrangements with the subcontractor I would expect, in order to ensure it is properly accountable, it should ensure that it is able itself to access the information it needs. I do not think it is proper to prescribe the detail in the way that has been put forward by the noble Lord. For example, it is not clear how the £1 million contract threshold would be calculated. How would additional payments which might take the value over £1 million be taken account of? Different public authorities might take different approaches to valuation. If that happens, the approach will not be applied consistently. I worry that the amendment might be attractive on its face but deceptively difficult to operate on the ground. I am not saying that issues such as this are insurmountable; I merely use this as an illustration of why careful consideration is necessary to ensure clarity for public authorities, the Information Commissioner and users alike.

I have also made the point previously that to comply with FOI requests for contractor information public authorities would need to have access to any information held by the contractor that is potentially relevant in terms of responding to the request. Such a requirement to share all such information with the public authority so that the authority might comply with FOI requests could adversely affect the effective delivery of the contract. Again, I am sure that solutions to this issue exist, but they require careful consideration.

I reassure the noble Lord, Lord Wills, that our opposition to the amendments results from the need to make sure that effective and proportionate solutions are developed. It does not result from a lack of a commitment to transparency or the effective operation of the Freedom of Information Act. I therefore invite the noble Lord—

--- Later in debate ---

[Lord Nickson]

My Lords, I have made a rare appearance here because I thought that the Scotland Bill would be coming up yesterday and was suitably disappointed. I did not come to speak in this debate. However, having spent a lifetime in industry and having also been fortunate enough to be the chancellor of a very junior Scottish university to that of my noble friend Lord Sutherland, I should like to say to the Minister and the Government that I have never heard a debate in this House containing such conviction, unanimity and passion, and given with such authority from so many sides. I am deeply impressed by what I have heard. I merely rise to support the amendments and to plead with the Minister and the Government to take what has been expressed with great seriousness.

[The Earl of Erroll]

My Lords, I should like to add a couple of words to the debate. I have a sort of interest in that I am helping a New Zealand company called Pingar, which works in the area of contextual data extraction from large unstructured data sets—what are called “big data”.

One is aware that there is a huge amount of information out there, particularly in public data sets, which can be reused very usefully, and on that I agree with most of what the noble Lord, Lord Lucas, said. We must try to make this information available in useful ways. We could make a lot more use of this information to help the country, and indeed humanity, as a whole.

I agree entirely with the noble Lord that the definition of data set is most peculiar. When information is analysed and put into tables and some sense is made of it, further information may then be extracted and combined with other data, and that is probably the best use that can be made of it. Therefore, it seems a bit odd to include in the definition only raw data before they are analysed. However, it is probably that I just do not properly understand the Bill and all its ramifications in that area.

However, there is an area where I sympathise entirely with these two amendments. A research establishment in a university is publicly funded and is at the cutting edge, and it may spend a lot of money acquiring raw data. Having to reveal those data to someone else before anything is done with them is like giving that other person a free ride regarding all their data acquisition. Why should someone not be second into the field, waiting until someone else has spent all the money acquiring the data, asking for the data set and then running their own analysis? For a researcher, the most valuable part is the raw data.

I found it fascinating that on Amendments 55ZA and 55ZB the Minister was urging secrecy—we had to keep all this stuff from the Civil Service secret so that citizens could not find out whether their money was being used usefully. Now, we are opening up everything where public money has been spent so that UK plc can advance itself in the research area and so on. We are suddenly opening that up so that anyone can get hold of it.

The first of the two amendments relates to putting copyright restrictions on data sets to make sure that they cannot be taken freely, yet in other legislation the Government are making sure that we give large amounts of money to large American corporations which have bought copyright from British creators so that they can enforce that copyright. Therefore, we are looking after the interests of large commercial companies but we are not looking after the interests of our research establishments and universities. I am terrified that they are going to lose the competitive edge that they might have.

The interesting thing that came out of the whole Crick/Watson DNA episode was the fact that they got together—there was a meeting of minds in an informal environment where they exchanged ideas. Again, what worries me is that the Government are trying to prevent that with their Immigration Rules and tier 2 immigration arrangements so that we will no longer attract people and encourage a flow of brains in and out of the country. That would be far more valuable than trying to open up data sets so that other people could use them abroad.

[Baroness Royall of Blaisdon]

My Lords, I support Amendments 55A and 56. I do not believe that this is about restricting the scope of the Freedom of Information Act; it is about fixing the Act to fit the purpose. We have heard compelling arguments about disincentives to young researchers and to collaboration and about the potential competitive disadvantage that our universities could suffer. Our universities are one of the most important drivers of jobs and growth in this country. They enrich the cultural fabric of our society. If universities in England, Wales and Northern Ireland believe that they are at a competitive disadvantage compared with those in Scotland, the US and Ireland, among others, I believe that we need to have a safeguard in place. We should heed their concerns and seek to revise our legislation as soon as possible. I support both amendments.

Protection of Freedoms Bill

Earl of Erroll Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Selsdon]

My Lords, I hope that I may be able to help the House. This has been a 10-year journey for me. Three Private Member’s Bills have gone through the House. I have thoroughly enjoyed myself. Having worked in one of the biggest bureaucracies in the world—Midland Bank—I enjoy the relationship with bureaucrats.

Those who work in trading standards are great people. I have written to them many times. A few days ago they sent me an e-mail at 4.13 pm. When I rang back at 4.30 pm they had gone home. However, we are good friends now and I am inviting them all to tea. If a trading standards officer goes into a restaurant or food shop, they go in either as themselves to buy something or, if they are going in to inspect, they have to be completely schizophrenic.

I wanted to see if I could help. As a Minister, the noble Lord, Lord Henley, knows well, and will probably let us know in his response, exactly how many powers of entry his department has at this time. There was a problem when Ministers did not know what their powers of entry were and numerous Parliamentary Questions failed to get an answer. Finally, with the great help of the party opposite, we got the final part of the Bill through. It was difficult because no one really knew what it was about. I then thought we should have a period of consultation. I had not raised the matter before. I wrote to the LGA, every local authority in the land, every bishop and vicar and everybody at a local level, saying that we had a new private website and that if they wanted to know what the powers were they could contact the website. We did that with considerable difficulty. I also got in touch with Citizens Advice.

I kept coming back to try to give advice to people. The noble Lord, Lord Henley, does not accept advice willingly because he sees the end game very quickly. He has a very quick mind and found me rather a nuisance. Therefore, I introduced a few amendments in Grand Committee but have decided not to introduce any now.

The main objective of the three Bills was to promote the introduction of legislation after the election that would prevent officials from entering people's homes, land or places of work without permission or a warrant, and would introduce a suitable code of practice. We drafted such a code; the noble and learned Lord, Lord Scott, will remember it. The Minister does not seem to want a code of practice at the moment. He just says, “We’ll put one in”. If we do not have a code of practice now, we will have a problem with powers of entry.

The second thing I asked for was a list. The Home Office stated that it could not put this into the Bill because by the time it was put in, a piece of secondary legislation might have changed it. I said, “Can we not have a list?”. We could not really have a list, so I thought of another solution. In preparing the Bills I had great help from a professor at Lincoln University. With Oxford University Press, he regularly publishes the laws of search, seizure and entry. A new edition is coming out. They have agreed to co-operate with the Home Office, which has already been in touch with them. Naturally, I am not necessary in the loop. However, we will have an official publication that will be updated from time to time, and a website. I would like to be able to put that in the Library. It is, however, extraordinarily difficult, as a Back-Bencher is not allowed to put anything in the Library. The only person who can do so is the Minister. If I do get these things together, could the Minister arrange for me to have permission to put it in the Library? Could he also agree that there will be a code of conduct and that he will produce it before this Bill is finished?

This has been a most interesting time. I have bored to death not everyone—because there were not a lot of people around—but I have certainly bored Hansard. Again and again one has to re-type every Bill. Being on the Information Committee, I have the benefit of PICT. In the latest list I managed to transpose three Bills, but the Home Office has not picked up which ones they were.

I am very grateful to all those who have helped on this. I support my noble friend Lord Marlesford because I support him on almost everything he does. I am extraordinarily grateful to the party opposite for raising some serious problems. They looked at me with a certain cynicism to begin with, but I think we are good friends.

[The Earl of Erroll]

The point about passing at least two of these amendments is that at least we can come back and tidy them up at Third Reading, because certain people have criticised their wording. If you do not pass them now there is no pressure to put anything in at Third Reading. This happens quite frequently and stalls the whole thing.

The whole point is that householders need to know what their rights are. They cannot possibly begin to know if there are thousands of different powers of entry, so there need to be some very simple rules that apply universally, which is what we have to come up with eventually. I support the first two amendments in particular.

The first amendment is about giving permission for entry, which I fear slightly because there is always a danger of people being bamboozled on the doorstep or being threatened by “If you don’t let us in we know you are guilty” and letting them in out of fear. Amendment 37ZB is therefore particularly important. It states what we understand the position to be in common law and in other things, but why not restate it? These are the things that must be taken into account when powers of entry are being examined and there is no harm in restating something when people have clearly forgotten. People expect a warrant unless there is a very good reason why not. To my mind that is quite reasonable and I cannot see why it is a problem.

I was most intrigued by the third amendment because it reserves certain powers and I could not understand why the noble Baroness started off by saying that trading standards officers did not exist, then said what a good job they did and then said that she disapproved of this amendment as it reserved powers to these non-existent people. I could not understand why the amendment was not a good idea because it would keep the powers of these people—whoever they might be—as they were. Although the amendments have defects, we should pass them and the Government can tidy them up at Third Reading.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the noble Lord, Lord Selsdon, who raises a very important issue in relation to the use of these powers. I note what he has said and his excellent work leading to the very welcome safeguards that are already in the Bill but would certainly not be there without his work. However, I must tell him that I think he is being a little tough on the excellent people from the Trading Standards Institute. I am sure that, while one person was at tea at 4.30 pm, the majority of them were out doing their business at that time.

Protection of Freedoms Bill

Earl of Erroll Excerpts

Tuesday 31st January 2012 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, I hope that I can deal with these two cases relatively briefly. My noble friend Lady Hamwee has brought before the House again the issue of those detained by the police and taken to a police station as a place of safety under Section 136 of the Mental Health Act. My noble friend outlined what that did, but it might help if I briefly outline my understanding.

If a person in a public place appears to be suffering from a mental disorder and in need of immediate care or control, Section 136 of the Mental Health Act allows a police officer to remove that person to a place of safety if the officer thinks it necessary to do so in the interests of that person’s protection or that of other people. I should make it clear that persons detained under Section 136 of the Mental Health Act—my noble friend emphasised this—are not arrested. That is a very important point that we all have to remember. It is an entirely separate regime, focused on the protection of the detained individual rather than the wider public. The powers to take DNA and fingerprints in Part 5 of the Police and Criminal Evidence Act 1984 apply only to those individuals arrested for a recordable offence. If a person was arrested for a non-recordable offence, such as speeding, or if they were not arrested at all but detained under the provisions that we are talking about, as is the case under Section 136, the powers simply would not apply.

If the police were to take biometrics in these circumstances, it would be not only an error on the part of the police but in fact unlawful. Under new Section 63D(2)(a) of the Police and Criminal Evidence Act, as inserted by Clause 1 of this Bill, if it should get on the statute book, all police officers would be under an obligation to delete material taken in this way. Therefore, I can say to my noble friend that Amendments 1 and 2 are unnecessary in that respect. She shakes her head, but I can assure her that, because the person had not been arrested, that would be the case. Taking biometrics from a person detained under Section 136 of the Mental Health Act is already unlawful.

The police are guided in the way that they take DNA and fingerprints by the PACE code of practice D, which deals with issues of identification of persons by police officers more generally. We will need to update code D in the light of the passage of this Bill and before it comes into force. I am happy to say to the House that we will include in that revision of the code a paragraph to make it quite clear that taking biometrics from those detained under Section 136 of the Mental Health Act is unlawful.

[The Earl of Erroll]

Just to clarify, if the police inadvertently, even despite the new code, were to take such a sample unlawfully, presumably it would just be destroyed once they realised that they had made the mistake. There would not have to be any other rigmarole.

[Lord Henley]

My understanding is that it would be unlawful and that therefore they would destroy what they had taken. I can give that assurance to the noble Earl.

--- Later in debate ---

[Lord Desai]

My Lords, I apologise for not having spoken before in a debate on this Bill. I have listened to the excellent idea of my noble friend Lord Campbell-Savours about a voluntary DNA database, but I want to say just one thing. Yes, a voluntary database is a good idea, but if people do not volunteer they should not be marked down as being unco-operative. It is quite likely that some people will not like the idea of offering their DNA. It would be a very bad thing if it got to the stage where not volunteering became a black mark against you. It would detract from the virtue of my noble friend’s suggestion. Certain ethnic communities, especially women, may not want to have their DNA taken. Therefore, we must make sure that it is not held against them if they do not volunteer.

[The Earl of Erroll]

My Lords, I was quite attracted by the concept of the freedom to choose voluntarily to do something but in this case it leads us astray. History teaches us that, if there is a large amount of private information out there which a Government think is useful, they will acquire access to it. For example, the USA Patriot Act gives the American Government access to anything they want in the name of trying to fight terrorism. Therefore, these data will not necessarily be secure in perpetuity if someone sees a use for them.

I have also learnt from history that governments who accumulate a large amount of information on their citizens end up using it to control the everyday lives of those citizens. For starters, you only have to look at communist Russia, watch “Dr Zhivago”, or look at East Germany, Albania or all sorts of places, where, at the end of the day, these things are used to control behaviours. I am sorry but I do not trust the people who end up in charge of these things. We need to look 10, 20 or 30 years ahead and we do not know who will be in control then.

Perversely, as a result, it does not necessarily protect citizens. It is not as if this will give an automatic one-to-one match. It would do what this Bill is trying to prevent. The Bill is trying to protect us from the Government trying to accumulate large amounts of data. DNA of course is not infallible. Ultimately, it is vulnerable to contamination of samples and laboratory error. It is only an approximate match; it is not a one-to-one match the whole time. Therefore, there will be errors which could be misused. I think that this amendment concerns a bigger subject and should be left out of the Bill. It does not fit with it.

[Baroness Royall of Blaisdon]

My Lords, I rise not to support my noble friend on behalf of the Opposition necessarily but, as I said in Committee, as an individual I have a great deal of sympathy with my noble friend’s amendment. Like my noble friend I believe that such a voluntary database would lower the level of stigma and in the future might enhance public confidence in the secure handling of data, which is very necessary. As my noble friend has said today, the state will undoubtedly hold more and more information about its citizens.

I was also very interested to hear of the response by Professor Jeffreys to Mr Gary Streeter MP, which is worth pursuing. I do not know what the Government’s response to my noble friend’s amendment will be, although I suspect that they will reject the amendment. However, it is an interesting suggestion and I hope that, if the amendment is not accepted by the Government, the National DNA Database Strategy Board will look at the proposal as perhaps something interesting to pursue on behalf of the citizens of this country and their safety.

--- Later in debate ---

[The Earl of Erroll]

My Lords, although I would agree that the Government have made an effort to move some way in the direction that we were talking about, I entirely agree with the remarks made by the noble Lord, Lord Rosser. For many schools, particularly the not-so-good schools, fingerprint recognition biometrics are used in order to stop a certain amount of bullying—so that you cannot, for example, tell which children are in receipt of free school meals or getting special provisions. The moment you start to have a way of distinguishing those matters, other children will have a lever to start bullying, causing disruption et cetera.

It was said that if the parents decided that the child should not have its biometrics kept they could use a card and some other system would have to be provided. But that in itself could become a target for the other children. For instance, if you knew that little Johnny had a card and was also vulnerable, what could be better than to remove his card and destroy it? He will probably not dare tell people that he has been bullied in this way. People might even use that card to gain stuff for themselves. Your Lordships might say, “It is PIN-protected”. However, it would not be very difficult for other children to bully that PIN number out of little Johnny.

We have to realise that, in the real world, these things are not ideal. These biometrics were being used to provide a much more even way of identifying children with special requirements without other children knowing that they have them. The provision could drive a coach and horses right through this very efficient way of doing it. The Government should therefore think again about what the noble Lord, Lord Rosser, said, and produce their own amendment for Third Reading. The system will need to work in that sort of way so that it can be changed and the child can opt out. If the child thinks, “I am going to get bullied”, it may well want to overrule its parents. In this case, I do not see why the child should not.

The other thing that they might want to do—although this would require a few more amendments and I would not begin to attempt those myself—is somehow to find a way of saying that if this is not working because it is starting to cause problems in schools, we could come back and change it without having to go back to primary legislation. Although I do not like the Henry VIII-clause method, perhaps we can bury some part of this in regulation whereby it could be varied if the Minister found later on that it was causing problems in schools. For instance, instead of the parents having to do an opt-in to the system it would have to be a very deliberate opt-out. Something like that could be useful, because I know this all looks great on paper but out there in the real world it does not work that well. People are not reasonable.

There are also a lot of people who cannot read and write. We talk about providing the information in a form which is easily understood by parents but I am told that the adult illiteracy rate is supposed to be 10 per cent. Perhaps it is 14 per cent, I hear, and in some schools you are going to have that. How many languages would you have to translate it into in some schools? We all seem to be assuming that people are reasonable and available, can read and write, and can understand the issues. That is very dangerous. The Minister should probably look at this and try to give himself more flexibility, in case there are some unintended consequences of what is a well-meaning part of the Bill.

The important thing which we want to end up with is that biometric information used by schools for their administration systems cannot be used outside the schools, and there are many ways of achieving that other than by this opt-in only basis. We should make sure that it is destroyed the moment that the pupil leaves, because it is not needed for administration purposes, and that is not permissible to use it in any other way. If we think that we can keep a voluntary DNA database secure from the Government, we can keep school databases secure from them and the police, or whoever. It is not the fact of the fingerprint that matters; it is what it is used for. We should perhaps make it so that it is not of evidential quality. I suggest to the Minister that he looks again at this.

[Lord Henley]

My Lords, I note what the noble Earl, Lord Erroll, said in his concluding remarks and we will certainly look at whether any such biometric information should ever be made available outside school. He makes a perfectly valid point on that. Perhaps I might answer some of the points that have been made in the course of this debate, then move my own amendments. It will be open to noble Lords to consider what to do with their own amendments that have been grouped with this later on.

I start with the question of language, which my noble friend Lady Hamwee raised in Amendment 23. The amendment says that information provided by schools and colleges to parents and children on their rights under these provisions must be in a language capable of being readily understood by the parent and child. In response to the noble Earl, Lord Erroll, this is true of all information that is provided to parents, whether illiterate or not, and it is something that schools always have to take into account when trying to get to their parents. As I indicated in our deliberations in Committee, the Bill provides that parental consent must be informed and freely given. Schools and colleges should take steps to ensure that parents receive full information about the processing of their child’s biometric information.

I can give an assurance that the Department for Education will issue advice to schools on the provisions in this chapter of the Bill. That advice will include a template consent form for schools to use if they wish. As well as providing information about the type of biometric information to be taken and how it will be used, the advice and the template will refer to the right of parents and pupils to refuse or withdraw their consent and the duty on schools to provide alternative arrangements for those pupils whose information cannot be processed. We will encourage schools to follow the template that we have put forward.

With the aid of this advice, I hope that my noble friend will agree that we can trust schools and colleges to provide appropriate information in the appropriate manner to provide parents and pupils with the right information without the need for an express legal requirement of the kind set out in her amendment.

I turn to my noble friend’s Amendments 20 and 21, which are amendments to government Amendment 19 and seek to ensure that children will also be notified of the processing and of their right to object. We do not consider that an express statutory provision to this effect is necessary, as schools and parents should be trusted to inform children in an age-appropriate manner of what is being proposed, and to ascertain if the child has any concerns about the processing. The proposed government advice will highlight to schools the child’s right to object, and will recommend that parents are made aware of that advice.

I turn to the amendment in the name of the noble Lord, Lord Rosser. I was worried that his arguments were oversuspicious and, at some points, over-Jesuitical. He seemed to think that there was a hidden agenda, and at times I suspect that there was an element of him protesting too much in his objections to what we do. Having said that, I have a degree of sympathy for the arguments that he put forward.

The Government believe that, regardless of their age, all children should have the right to say no to the processing of his or her biometric information, even if that is an uninformed objection from a relatively small child. No child of any age should be coerced, physically or otherwise, to give his or her biometric information. We believe that it would be wrong to ignore the wishes and feelings of even a primary-aged child in this important matter.

[Lord Henley]

My Lords, I was going to come to that point. The two scenarios are different. This is why I thought that at times his arguments were positively Jesuitical, with one parent pushing one way, one pushing the other and the child possibly going down a third route, if there could be a third route. Why should one or the other prevail? We think it is right that if the parents say, “No, we do not want that”, that should be final. That is why we have tabled the amendments. Even if one parent objects, that should be it. However, because we believe that these things are important, we also feel that, even if the parents want the provision, it is right that the child can opt out, even if he or she is making an uninformed decision. There is a very big distinction between the two matters. That is why I was worried about the arguments that the noble Lord was putting forward. I believe there is little to be gained in overruling the child’s wishes and I am not aware of any specific evidence that—

[The Earl of Erroll]

I was trying to make that same point, although not as well. Does the noble Lord remember being very embarrassed when he was at school by some of the things that his parents did because they did not understand how things were at school? That is the huge danger here. Some parents will be wound up by the Daily Mail into deciding to opt out of providing biometric information and their child will feel incredibly embarrassed because they stand out in class. That could get quite serious. Children may know better in this instance than one thinks.

[Lord Henley]

All of us have been children and most of us in this House are parents. All of us know that one thing that is absolutely universal to all children is feeling deeply embarrassed by their parents. That has been the case since time began. There is no way round that. Children will continue to be embarrassed by their parents, whatever their parents decide to do. The point I am trying to make is that I think there is a very big distinction between the parents saying, “Yes, you should do this”, and the child saying, “No, I want to opt out”, even if he or she is making an uninformed decision; and the other way round whereby it is being suggested that the child should be allowed to opt in even though the parents want to opt out. We want to make it clear to the child that this is a very important decision about giving up some of their own identity. They should be allowed to make that decision for themselves because it is a decision they will have to go on making in the future.

I think that I was the first to use the expression “kicking and screaming” in Committee. I do not think that is something that is likely to happen. A relatively small number of schools will make use of these sorts of mechanics, particularly when we are talking about primary schools. I believe that we can trust parents, schools and teachers to resolve any of the concerns that might crop up. The noble Lord has a point but it is a relatively small point and I do not think that he should get too worked up about it. I assure him that there is no hidden agenda on the part of the Government. I think these matters can be resolved by schools in a sensible way. Therefore, I hope that the noble Lord will not feel it unecessary to move his Amendment 24 when we come to it. I hope that I have addressed the points raised by my noble friend Lady Hamwee in her amendments and by the noble Lord, Lord Rosser.

Protection of Freedoms Bill

Earl of Erroll Excerpts

Thursday 15th December 2011 Grand Committee

[Lord Phillips of Sudbury]

My Lords, my noble friend may be right. We disagree, as things stand, as to the meaning of Section 22(3) which, I think she will readily agree, is obscurely worded.

[The Earl of Erroll]

My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I think I can intervene now. I apologise if I digress to mention metal thefts, civil partnerships or intercepts as evidence, but even by a quarter past two it has already been something of a long day. My noble friend Lady Hamwee talked about the need for hot towels to understand what is going on behind some of the amendments tabled by my noble friend Lord Phillips. I am grateful to discover that it will be hot towels only for my noble and Liberal friends, so I shall get on with an explanation of what I think my noble friend Lord Phillips is getting at in his amendments and what the Government’s response is. That should be useful to noble Lords. What I think these amendments laudably seek to do is provide a degree of clarity in what is obviously a complex area, but I hope I can persuade him that the existing drafting of Clause 37 and of Sections 22 and 23 of RIPA is appropriate.

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[Lord Scott of Foscote]

My Lords, I support wholeheartedly these amendments. My interest in powers of entry began about two years ago when I became a member of the Merits of Statutory Instruments Select Committee. Very soon it became apparent to me that statutory instruments kept coming in front of the committee providing for powers of entry for regulators in various different areas of activity.

One statutory instrument I particularly remember and which really prompted my interest more than any other was one arising under the Medicines Act, which gave power to regulators to enter the premises of pharmacists in order to ensure that the various provisions of the relevant statutes were being observed. The power to enter, which included entry into people’s dwellings, was a power to turn up and demand entry. If entry was refused, it was a criminal offence, and the official would have to come back with a warrant upon which he could gain entry; or, of course, if he knocked on the door and was admitted by consent, that was satisfactory.

When I saw the power to enter without consent and without a warrant, I began to worry. I went to visit the civil servants who had produced the particular statutory instrument and asked them about it. I was told, “Oh, this is common form, this has been here for years. Several previous statutory instruments under the old Medicines Act had similar provisions”, which was not really an answer to the question. I asked how often they had found it necessary to prosecute people for refusing entry, and they said, “Never”. Then I asked how often did they have to get a warrant. “Oh, we are always allowed entry”, they said. There was not a problem. They entered according to their customary practice, of which all of them had experience, by agreement. However, there on the statute book, in so far as a statutory instrument is part of the statutory law, was a power to enter without either agreement or a warrant. Other statutory instruments began appearing with the same features. Inquiries about those did not produce a significantly different response from that which had been given to me by the officials who had dealt with the Medicines Act statutory instrument.

I then met the noble Lord, Lord Selsdon, and conversations with him encouraged—and perhaps to some extent exaggerated—my worries about these powers of entry in statutory instruments. They do matter, I respectfully submit, particularly where the premises in question is somebody’s home. People are entitled, when they go through their front door and shut it behind them, to feel inviolate. Of course, the police have all sorts of powers of entry. They can enter under warrant, which is well known; they can also enter in hot pursuit of a criminal if the criminal dives in and seeks to take refuge; they can enter if they suspect criminal activity is going on within the premises and so forth. These powers of the police are well accepted and understood, but powers of entry for officials who are not the police but simply officials in some government department with a regulatory function—which is important and needs to be carried out—are an entirely different proposition.

There is absolutely no reason why powers of entry for all officials outside of the police should not require either agreement from the occupier of the premises or a warrant. The notion that you need a safeguard for very speedy entry in some cases is probably mistaken. A warrant can be applied for without any notice to the person whose premises are to be entered. The arrival of somebody with a warrant is just as much a surprise as the arrival of somebody without one. There is no need in an emergency to allow an entry. The warrant can be applied for and obtained very quickly from a magistrate, of whom there are many in all parts of the country. You ring them up and can go to the duty magistrate at any hour to get a warrant—if your facts are sufficient to justify the magistrate’s agreement to your application.

So much for powers of entry. The need for powers that require neither agreement nor a warrant is simply absent. What is worse is that a number of the statutory instruments where these excessive powers of entry can be found are accompanied by a provision making it a criminal offence to refuse entry. I have done no research other than the questions I asked of the individuals I have already referred to, to discover how often it has been necessary to bring criminal proceedings against people who refuse entry. I do not know the answer to that but, again, if there is any anticipation on the part of officials of a likely refusal, then they should get a warrant, ex parte without notice to the occupier of the premises, and turn up with it. Then they would be allowed entry.

We are not only talking about entry, but also about the searching of premises. Who would be other than aggrieved and indignant if an official turned up at his or her premises, demanding the right to search and shuffling through the wardrobe, the drawers in the bedroom, the Chesterfield or whatever it may be? These are necessary powers but they should not be exercised without the authority of a judicial figure if agreement on the exercise of them is not forthcoming or is expected not to be forthcoming. This reform of the powers of entry is long overdue and is excellent.

In Clause 40 of the Protection of Freedoms Bill there is a welcome attempt on the part of the Government to introduce safeguards to be associated with powers of entry in order to reduce the problems to which I have referred. Those seem to be fine but, if I may respectfully say so, for one exception. They start in subsection (1) by saying that:

“The appropriate national authority may by order provide for safeguards”.

That is a discretionary power. “May” means “may”—it does not mean “shall”. Then one finds in subsection (2)(d),

“a requirement for a judicial or other authorisation before the power may be exercised”.

That is still a discretionary power. To my mind, the attraction of Amendment 133 tabled by the noble Lord, Lord Marlesford, is that it makes the requirement for a warrant or consent compulsory. If paragraph (d) were taken out of Clause 40(2) and given a separate paragraph, making it a compulsory requirement for the exercise of a power of entry, the rest of Clause 40 would be entirely satisfactory and welcome. To leave it simply as a matter of discretion is simply not good enough, and the Government should think again about that. There is no reason why it should not be necessary to have either an agreement or a warrant. In any case, where there is a worry that notice to the occupant of the premises would give him or her opportunity to get rid of material that they do not want discovered, then go without notice but with a warrant. That solves the problem. This is an area of the law that needs reform. The amendment in the name of the noble Lord, Lord Marlesford, provides the necessary reform, but it needs some adjustment to Clause 40. That is all I need to say at this stage about that.

If the occupier consents, of course there is no problem, but I have a little worry about consent. Consent, if it is to be a satisfactory alternative to a warrant, must be free and willing. When an official knocks on the door and says, “I am from the department of whatever and I need to search your property” for whatever he or she is searching for, the householder may very well be overawed by the authority and hence unwillingly give his consent. That should be looked at very carefully, and a code of conduct in that regard is probably desirable. If there is any doubt about it, the official should get a warrant before it can be done without notice to the occupier. That should solve the problem. For the reasons I have given, I strongly support the amendment in the name of the noble Lord, Lord Marlesford.

[The Earl of Erroll]

My Lords, I should like to say a few words on this important issue. Ultimately, it is the householder or the business owner who has to decide whether the official or whoever it might be is allowed in or not. Not all of them are necessarily government officials because there are powers of entry for certain people—for instance, RSPCA officials in certain circumstances as regards animals. But I may be wrong. I just think that there are, which is frightening. I do not know one way or the other.

[Lord Scott of Foscote]

The noble Earl is quite right. There are powers for RSPCA officials. If they have reason to believe that an animal is not being well looked after or is being mistreated, they have a power of entry.

[The Earl of Erroll]

That is the point. The power of entry does not extend just to government officials. It can extend to other bodies. The danger is that the poor person at the door does not really know. As regards a business, perhaps officials have come along to seize equipment for some reason and think that an offence has been committed. That could be severely dangerous for a business, particularly if some of the equipment might be needed. A person needs to know instinctively whether the official can come in or not. The danger of any consent being involved is that it would be an excuse for bullying. We notice already that people who have regulatory functions, say, under health and safety, food safety or whatever, sometimes insist on things being done, which may not be strictly within their powers to insist on. Often expensively, people comply because they are terrified that they will get more inspections or more grief from the authority if they refuse. They also may have a feeling of, “If I don’t let this person in, it will seem as if I have something to hide. Then I will go in a black book and they will be around again and again”. I do not like anything that relies on a consent model.

I have looked at this issue randomly and I picked out hedgerows regulations, which I thought probably applies to private households. It includes a nice, simple phase which states that if someone does not let an official in or that it is difficult, they can get a warrant. It is terribly simple. I do not see why we do not classify things: basically, a warrant is needed to get entry, except, as everyone has said, in the case of an emergency. I will not try to suggest the wording because two efforts have been made. It is absolutely right. The idea that we modify every statute, Act of Parliament or regulation to bring them into line is completely the wrong way to go about it.

We had this problem with surveillance, investigatory powers and communications et cetera, which is why we introduced the Regulatory and Investigatory Powers Act—RIPA—which we talked about earlier. RIPA has been made incredibly complicated, which we would not want. But why do we not have an Act which regulates all powers of entry so that everyone can see the conditions quite simply and all other statutes or Acts refer to it if there is to be a power of entry? The power should be laid down in one place, but this time it should be kept simple.

At the end of the day we have to think back probably to Edmund Burke who, in the late 1700s, referred to the Englishman’s home being his castle. Yet here we are still struggling to keep a little bit of last defence there in some way. It seems that every single member of the public has access to it except the person who wants to protect it. If we cannot have any of this and it is too difficult to set it out simply in one place then I like the list of the noble Lord, Lord Selsdon, or a duty for someone to have that list somewhere easily available so that, if I am a business owner or householder, I can click on the Home Office website and it will tell me exactly what I have to do. How we do that is up to the powers that be. Personally, I think having it in one simple Act somewhere else that everyone refers to would be much simpler, certainly for me and the general public.

Protection of Freedoms Bill

Earl of Erroll Excerpts

Tuesday 13th December 2011 Grand Committee

[Baroness Hamwee]

Perhaps I had better not continue down this route—I could, but it would take more time than the Committee might like to devote to it.

Another point on which I am perhaps not with the noble Lord is that every school knows what every child is up to all the time—I wish that were so. I am sure that we are going to hear from the Minister about the balance between privacy rights and sensible use of technology—I hope that we are not going to hear about feed-in tariffs, which seemed to stretch the analogy a bit far.

The noble Lord, Lord Lucas, did not know, on reflection, what his Amendment 85 was about. I have been in that situation as well, but that is not so on this amendment, against which I wrote “silence equals assent”—I think that it is the difference between opt-in and opt-out.

Before I come to the detail of my amendment, I wish to pick up on the point made by the noble Lord, Lord Rosser, about the technology being used in schools not being as sophisticated, if I can use that term, as technology used in other contexts. Can the Minister say how reliable the equipment is? That was the immediate question I had in response to the noble Lord’s comment.

My amendment does not contradict any of the other amendments that have been spoken to and is not inconsistent with the Bill. It provides that the relevant authorities, schools, academies and FE colleges should tell parents and children of their rights to refuse consent at least once in every academic year—in other words, it is about informed consent. The suggestion comes from the Children’s Rights Alliance for England, which supports the provisions in the Bill for ensuring that the institutions cannot process biometric data if consent is refused. I know that my noble friend will say a word about the convention rights.

I have been told by the Children’s Rights Alliance about research which shows that most children using these systems have not considered how long their fingerprints would be held for and they generally were not concerned. My response to that is that of course they would not—they are children and they do not necessarily think through all the implications of what they are being asked to agree to. Therefore explaining exactly what the subject matter is, both to them and their parents, is important. Other research—again, I am not surprised about this—shows that when schools have introduced a biometric system they have emphasised the benefits and not talked about the problems. All of this is natural human reaction.

The noble Lord, Lord Rosser, referred to the report of the Information Commissioner in 2008. The Information Commissioner made it clear that schools which collect data must be aware that children are data subjects and that they,

“should in the first instance be informed and consulted about the use of their personal data”.

This being the first principle of the Data Protection Act, he went on to say that,

“Fairness requires that schools ensure that pupils are informed about and understand the purpose for which their personal data is being processed”.

Our amendment would require that they are in a position to give consent—or, indeed, withhold it—but on an informed basis.

[The Earl of Erroll]

My Lords, this is an area which I have been thinking and worrying about because of the practicalities of it all. The part about children and schools is a well meaning and well intentioned effort to introduce legislation to make sure that children’s privacy is not breached and that no information is kept on them which could make things difficult for them in later life. It is very important that we should not do that.

However, as the noble Lord, Lord Rosser, said, we could try to make sure that the biometric information that is used for administrative purposes is not kept to evidential standards. In other words, the information could not be used in courts; it could not be linked up with the police computer; it could not be linked up elsewhere. That could be done simply by making sure that it is kept to a standard which is good enough to identify people for administrative purposes in populations of a few thousand, but once you raise it up to a national scale it does not work. For instance, under EU directives there have to be 13 matching points for a fingerprint to be admissible in evidence in court—that is, 13 out of 18. If only 10 or 11 were kept, which is probably quite sufficient for the school’s purposes, the information could never be linked with the main national databases. That might well be a way round it. That is contained within this group of amendments.

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[The Earl of Erroll]

Thank you. I am sorry to have wasted the Committee’s time. In general, I think that a lot of these amendments are very useful, and they should be taken away and looked at hard by the Minister. We should be moving from an opt-in basis to an opt-out basis and avoiding adding costly burdens to the school system.

[Baroness Walmsley]

I support my noble friend Lady Hamwee on Amendment 91 and will make a few comments about other noble Lords’ comments.

Amendment 91 is necessary on the basis of children’s international convention rights: the privacy rights that a child has under Article 8 of the ECHR and Article 16 of the UN Convention on the Rights of the Child. In particular, Article 12 of the UNCRC says that a child has a right to be heard in decisions that affect them. The UN Committee on the Rights of the Child has made it very clear that, in order for a child to realise that right, it is necessary that,

“the child be informed about the matters, options and possible decisions to be taken and their consequences”.

Therefore, this amendment is very important especially since, under the proposals before us, the child has the right to refuse consent as well as the parents. It is important that the parents and the child are given the information that they need in order to make an informed decision.

Further to what the noble Lord, Lord Rosser, said, I think that the reason why the child should have a final veto is because we are talking about very specific information about the child’s body—the fingerprints, the retina, the face or whatever. The child’s body belongs not to the parents but to the child. Therefore, it is very important that appropriate information is provided. Most children are very compliant and they like to co-operate with people who are in authority over them—their parents, their teachers and so on—so it is important to let them know that they do not have to do so. There may well be very good reasons why they should agree to co-operate, but they should also have the right not to do so if they wish.

Let me make just one or two other points. I listened with interest when the noble Lord, Lord Lucas, said that schools should know where every child is physically at all times of the day, and I quite agree. However, I think that that should rely on the attention of the teachers, rather than on the likes of CCTV or electronic cards passing through doors. There is a danger that, if there is too much of this sort of thing—electronic ID cards or CCTV—teachers will come to rely on it too much and the teacher’s vigilance will be reduced. We really have to ensure that the technology tail does not wag the human rights dog.

Going back to what the noble Earl, Lord Erroll, said about letting people know every year, I agree that the information should be reworded if the system changes or is enhanced in any way, but otherwise I agree with my noble friend Lady Hamwee that it is not necessary to reword it every year. That can be done very easily, given that every school has a website or newsletter or something that gets sent out regularly to parents or to which the parents have access. As long as the school makes sure that, one way or another, the parents have that information in not too much gobbledegook or jargon, so that they can understand what the consequences of this system are, the school will have fulfilled its obligation under our amendment.

It is important to have the information in order to make an informed decision, and we all expect that. When we enter into any sales transaction or credit agreement or any kind of contract, we read the small print—or we need at least to be provided with the small print, so that we can tick the little box saying that we have read the terms and conditions, even when we have not done so. The point is that we have a right to have that information, and we really must be provided with it.

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Amendment 98, the last of my noble friend’s amendments in this group, seeks to add to the definition the word “inanimate” before “equipment”. I believe that my noble friend’s intention is to ensure that any living being or object capable of animate interpretation is excluded from this definition. I can assure him that the clause as drafted already provides for this.

[The Earl of Erroll]

I want to go back to the business about being able to assume that there is implied consent, when it is very difficult to get it. Does the Minister not accept that inertia can be quite large among people and that, if you have to get positive consent, there will be a whole raft of parents who will not get round to doing it, for one reason or another? Therefore, you will suddenly find in these systems such a large failure to opt in because of inertia that they will be quite expensive and will have to be replaced by manual systems. That could put a huge burden on some of the schools, which would have to be paid for by the Government. Is it not much more sensible to move into a positive opt-out rather than a positive opt-in? I think that it will be much more burdensome than the Minister thinks. People are full of inertia, and you are not going to get that many people opting in.

[Lord Henley]

I accept that there can be a problem with inertia. It is what one might refer to as the “cheque is in the post” syndrome. People say that they are doing things and they do not. I suspect that we have got it right, but I am more than happy to have a further look at this if the noble Lord thinks that there will be concern over that. But this is something that schools are already doing a great deal about in terms of consulting or talking to their parents, and it is something that schools are used to. But perhaps we could talk about that at some later stage or between now and another stage.

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[Lord Henley]

Careless words they may be, as the noble Lord is saying, but I will go on using them. The simple fact is that he was suggesting you would force a child to be registered. How is he suggesting that that could be done other than by dragging the child kicking and screaming? We think that it is right at any age. I think that it would be rather unusual for a child of five to say that he was not going to do something when his parents insisted that it should be done.

[The Earl of Erroll]

If I could assist—

[Lord Henley]

No, I will not give way, because I am answering the noble Lord. I can confirm that a child of any age can refuse; similarly, if a child of 15 wants to register but one of the parents refuses, it will not happen. We are trying to get the right balance.

[The Earl of Erroll]

I was only going to try to help the Minister by saying that all that would happen is that you would not get such a service. In other words, if it was a biometric lock that allowed access to a laboratory at certain times, the child just would not get into it. They would have to decide whether they wanted access or not. If it was about school meals, and the parents said that they would only get the meals that way, the child will just not get fed. They will soon come round.

[Lord Henley]

No, we are not looking for them to “soon come round”, as the noble Earl puts it. We are suggesting that schools should have to provide some alternative arrangement so that those who do not want to have biometric processes used can still get access to school meals or the library or whatever by some other means. It might be by a PIN or a swipe card. It does not have to be, but it is very convenient for a lot of them if they can put a finger down and get out their library book or get their meal. I hope that satisfies the noble Lord.

--- Later in debate ---

I hope that the Minister can agree to these proposals. I beg to move.

[The Earl of Erroll]

My Lords, having listened to the noble Lord, Lord Rosser, I suddenly realised about the extension into the private sector, which I had not really worried about. Presumably, that is going to mean door-entry systems, systems where you might be watching a childminding camera over the internet from somewhere else and security things which were in private use. It suddenly occurred to me that we have to worry about how far this could extend. That sudden thought came to my mind.

[Lord Selsdon]

My Lords, I have asked more questions on CCTV cameras in your Lordships’ House than anybody, I think, and I have been confused. The figure of 4.2 million was introduced twice by Labour Ministers in the past; there was also a code of good practice. It was estimated that there were 400,000 cameras in the London area alone. Some of the other estimates which led to private television cameras said that there was one for every three office buildings. I therefore support in principle the proposal that we should have more information. By my own knowledge from throughout the continent of Europe, we are the only country that has no knowledge of how many CCTV cameras we have, or of the latest technology that comes with them.

I will give your Lordships only one example. French policemen now have wonderful helmets, partly British designed, which have two cameras in the front and two in the back. As the French do not charge you for having a licence for a car, they make quite a lot of money out of some speeding offences but that technology is quite remarkable. I find it strange that we have not yet embarked on any programme to determine how many cameras there are and who they might belong to.