Brexit: Outstanding Commitments

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 6th February 2019 Lords Chamber

[Lord Bates]

That position, which was taken by the House of Lords committee, was looked at by the Government, who took a different view, believing that there were obligations. They observed that there was no existing legal mechanism to enforce them, but they said that the European Union would be entitled to pursue litigation through courts to recover payments. As I say, the best way to resolve all these issues is through a deal, and through the deal that is on the table.

[Lord Harris of Haringey (Lab)]

My Lords, the Minister has been extraordinarily helpful to the House today. Maybe he could just confirm something for someone like me, who sometimes finds it very difficult to follow these arguments. Is he saying to people who say that there is some way in which we can just wave aside this £39 billion commitment, that that is bogus and misleading the British public? Can he also confirm that the British Government believe that when they have international obligations, they should meet them?

[Lord Bates]

I agree with all of that. We certainly agree with my noble friend Lord Hamilton, who made the good point that part of the £35 billion to £39 billion covers the implementation period, which is the two years of ongoing contributions to the European Union. He is also therefore correct to point out that if we left without a deal, there would not be an implementation period, so that money would not be paid. However, there would need to be some mechanism to reach a negotiated settlement, or it would be as a result of a legal challenge in some court.

Capital Requirements (Amendment) (EU Exit) Regulations 2018

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 19th December 2018 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, further to the point made by my noble friend Lord Foulkes, this has obviously taken up barely a minute or two of your Lordships’ House’s time, but could the Minister tell us how many other such instruments he expects to bring in a similar vein to this House and through the procedures that the noble Lord, Lord Trefgarne, mentioned? How much time does he therefore expect the House to have to devote to these matters?

[The Minister of State, Department for International Development (Lord Bates) (Con)]

We are in the process of preparing, which any responsible Government should do, for the no-deal situation, which is not what we want. We want the deal to go through, but we have to prepare for every eventuality. I commend the work of my noble friend’s committee in providing very detailed scrutiny of these regulations, as I also commend those Members who did actually attend Grand Committee on 12 December and provided that scrutiny in person.

Police: Body-worn Cameras

Debate between Lord Bates and Lord Harris of Haringey

Thursday 11th February 2016 Lords Chamber

[Lord Bates]

We are doing a number of things in this area. We have issued the new reforms, and of course, Her Majesty’s Inspectorate of Constabulary keeps this under very tight review. We have also said that data must be collected on this, and transparency of data collection is a very important part of reassuring the public that these important powers are used proportionately and appropriately, irrespective of people’s ethnic backgrounds.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my interests in the register on policing. Can the Minister enlighten us? Is it not the case that where there have been trials of body-worn videos, the number of complaints against police have fallen, and that they have been much more easily resolved? If all officers who carry out stop and search had body-worn videos, would that not reduce many of the tensions? It might have a good effect on the officers concerned as regards the manner in which they carry out those stop and searches as well as on the behaviour of those whom they stop. If so, should the Government not move much more rapidly to ensure that all officers on the street, whether covert or overt, are equipped with body-worn videos?

[Lord Bates]

Indeed; that particular study the noble Lord refers to was on a trial carried out by the Metropolitan Police and the College of Policing, and it found exactly that: it had a regulating behaviour both on those who were videoed and those who carried the body-worn camera. Public approval was in excess of 90% across a whole range of indicators that this was a positive innovation. That is why the Met has announced that it will roll it out across all front-line services—Hampshire and others have already done so. However, at that level it is a matter for the chief constable.

Emergency Services: Central London

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 18th November 2015 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I draw attention to my entries in the register and beg leave to ask the Question standing in my name on the Order Paper.

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

My Lords, working across government the Home Office has developed a police-led capability to deal with large-scale firearms attacks. We are reviewing the attacks in Paris to see if there is anything further we can learn. Further communications will be made in due course.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble Lord for that Answer. No doubt he is aware that the London Ambulance Service has failed in virtually every London borough in every month to meet its emergency response targets, that the number of authorised firearms police officers has dropped by 760 since 2009 to below 5,000, and that the Police Federation says that the police would struggle to cope with an incident such as occurred in Paris if it were to happen here. Does the Home Secretary support the view of my honourable friend the shadow Chancellor that police emergency response teams and neighbourhood teams should be exempted from the worst of the Chancellor’s cuts to be announced next week?

[Lord Bates]

On the specifics, the noble Lord will realise that we will have to wait for the announcement to be made as a result of the spending review next week. On the points that he made, he will be aware that since the 7/7 attacks in the capital there has been a counterterrorism strategy. There are regular operations as a result of the coroner’s report into those attacks in London. She recommended that there should be much greater interoperability between the different services. That has happened. Only this summer we had Operation Strong Tower, which was a 1,000 personnel strong exercise, following which the Metropolitan Police Commissioner said that he believed we were ready to meet the challenge should such attacks happen in the capital. We want to maintain that at all costs.

Modern Slavery Act 2015

Debate between Lord Bates and Lord Harris of Haringey

Monday 26th October 2015 Lords Chamber

[Lord Bates]

I had not seen a report of that, but if the noble Baroness would draw it to my attention, I will certainly make sure that we follow up on it, because that is a crucial gap in the system if that is happening. I am sure that that is not happening in UK detention centres, but if she shares the information, I will ensure that it is thoroughly investigated.

[Lord Harris of Haringey (Lab)]

The noble Lord’s own department has produced figures estimating that there are up to 13,000 victims of modern slavery in the country. Given the enormous workload in terms of enforcement, in terms of the work with private businesses and in terms of the work internationally in trying to reduce the flow of trafficked people into this country, is the Minister satisfied that, with a team of staff that is only going to reach seven, the Anti-slavery Commissioner has the resources necessary to carry out this important work?

[Lord Bates]

The noble Lord will be aware that, last week, the Anti-slavery Commissioner produced his report—his strategy document—as he was required to do under the Act. He has set a very clear measure as to where he is focusing: the identification of victims, and the need to encourage prosecutions. As a former police officer, he is well placed to do that. In a lot of cases, it is not a resource question; it is an issue of will and intelligence to identify those people who are at risk to ensure that the perpetrators are tackled and those who are victims are helped.

Asylum: Sexual Orientation

Debate between Lord Bates and Lord Harris of Haringey

Monday 20th July 2015 Lords Chamber

[Lord Bates]

I pay tribute to the noble Baroness’s work in her role as a DfID Minister. We continue to work through the Foreign and Commonwealth Office and public diplomacy to try to ensure that discrimination of that nature is tackled at source. I will look into the projects she referred to, but perhaps we can compare notes to ensure that we are looking at the right ones. However, I will be happy to look into them and ensure that they continue to receive funding.

[Lord Harris of Haringey (Lab)]

My Lords, I understand that the former chief inspector of borders had some issues with the flexibility he was allowed in the investigations he could conduct and the publishing of his reports, rather than waiting for the publication of his annual report. Have those issues been resolved for the new inspector of borders?

[Lord Bates]

That matter was looked into by the Public Accounts Committee, which made some observations on how those reports are laid. They are laid in accordance with the UK Borders Act 2007, so we feel that that is consistent. The only reason why there was a change in the way they were routed through the department was to ensure that the Home Secretary had an opportunity to look at them, as is consistent with other reports, and in line with national security and public safety.

Psychoactive Substances Bill [HL]

Debate between Lord Bates and Lord Harris of Haringey

Tuesday 23rd June 2015 Lords Chamber

[Lord Bates]

My Lords, these amendments seek to reframe the definition of a psychoactive substance for the purposes of the Bill. This Bill is designed to capture substances supplied for human consumption that have psychoactive effects. Its aim is to capture substances that are not currently controlled under the Misuse of Drugs Act 1971, but, as with all drugs when misused, carry health risks.

Subsection (2) provides that,

“a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”.

We accept that this definition has been drawn purposefully wide. The nature of this market and of experience to date shows that producers of the substances are constantly and actively looking for loopholes to exploit, thereby fuelling this reckless trade. This learning has been central to how we have designed this Bill and in particular our definition.

By using a definition based on a substance’s effects rather than the chemical composition of substances, this legislation will avoid the issues that we have continued to face with the Misuse of Drugs Act 1971. Many new psychoactive substances are still legal due to the speed at which they are produced, with manufacturers inventing new substances by tweaking chemical formulas in order to avoid the existing controls. The need to capture such a wide range of substances, and any that might be invented in the future, necessitated a broad definition. The definition is in two parts: the trigger and the effects. The main effect of psychoactive substances is on a person’s brain, the major part of the central nervous system. By speeding up or slowing down activity here, psychoactive substances cause an alteration in an individual’s state of consciousness.

Amendments 7 and 8 in the name of the noble Baroness, Lady Meacher, seek to restrict the definition of a psychoactive substance so that it captures only synthetic substances. The nature of this market and of experience to date shows that producers of new psychoactive substances are constantly looking for loopholes to exploit, thereby fuelling their reckless trade. There are any number of natural products—such as fly agaric mushrooms and salvia divinorum—that are openly on sale in head shops and elsewhere which are far from safe though they are not banned under the Misuse of Drugs Act 1971. The Bill should give us a proportionate way of dealing with these substances as well.

Amendment 9 seeks to import the definition of a psychoactive substance—

[Lord Harris of Haringey (Lab)]

I am grateful to the noble Lord for giving way. I would like to understand—maybe if I had heard some of the other amendments I would have understood, but I am not sure I would have done given the comments that have been made—how, if the police, for example, have seized a product which may or may not be a psychoactive substance, they assess whether it is going to have these effects on somebody’s brain. Do they feed it to a tame police officer, or to a young person whose brain may be less developed? How is this going to happen? Is that something that then has to be replicated in a court room? What is the process going to be for saying, “This is definitely a psychoactive substance”? How will they tell?

[Lord Bates]

That is a good point. There are a number of ways. Perhaps I may make the point that I have been trying to set out the terms so that a future reader of the Official Report may actually be able to deduce—I will be careful here—what the Government intended when they set out the definition in this particular way. The noble Lord’s intervention is entirely appropriate and I do have an answer which I will give to him, but I want to make sure that we do not lose the flow of what underlies this, which is the rationale behind the definition.

There are a number of ways, and these include data based on a human user’s experience, argument by analogy and in vitro neurochemical profiling. Working with the Centre for Applied Science and Technology at the Home Office, we will identify and build the capability in the UK to meet the demand for this new forensic requirement, as well as working with the Office of the Forensic Science Regulator to ensure that the high standard of quality that forensic evidence meets is maintained.

The Home Secretary has written to the Advisory Council on the Misuse of Drugs seeking its views on how we can strengthen the UK’s forensic capacity and capability to support the implementation of the legislation. We remain ready to consider carefully any recommendations the council may have about other aspects of the Bill. We will continue with the forensic early warning system, which has enabled forensic providers more easily to identify new psychoactive substances coming on to the UK market through the provision of reference standards and establishing a new psychoactive substances community. I am sure that that has entirely answered the noble Lord’s point.

--- Later in debate ---

[Lord Bates]

I will send her chocolates.

I can assure noble Lords that we are dealing here with the trade in new psychoactive substances. In looking at the workings of the Bill it is necessary to consider the definition of a psychoactive substance alongside the elements of the offences in Clauses 4 to 8, which we will come to shortly. It is not correct to equate the effect of a scent wafting through the air with the direct inhalation of fumes, such as from a solvent, and the offences apply only where a substance is likely to be consumed for its psychoactive effect. We may all appreciate the sight and smell of a fine bouquet of flowers, but we are not consuming the flowers or their scent for their psychoactive effect.

The noble Baroness asked whether the reference to “allows” in Clause 2(3) goes further than the recklessness test in the offence clauses. The noble Baroness is, I fear, seeking to compare apples and pears. In Clause 2 we are not dealing with the mental elements of criminal offences. The phraseology in Clause 2 is designed for a wholly separate purpose compared with that used to determine the mens rea of the various offences, so the question whether “allows” is a higher or lower test than recklessness does not arise.

I shall respond to the point made by the noble Lord, Lord Rosser. The ban will come into effect as soon as the Bill is brought into force. What we are debating here is the quality of evidence required to pursue a successful prosecution. As I have said, we have asked the Advisory Council on the Misuse of Drugs to provide advice on how we can strengthen our forensic capacity to this end. It goes without saying, therefore—given that we are consulting widely on this— that the opinions and views of your Lordships’ House will also be helpful at arriving at that definition of minimal harm.

[Lord Harris of Haringey]

For the avoidance of doubt, I think that something should be done in this area and I am concerned that the Government’s proposals may not work.

I understood what the Minister read to us, in terms of the guidance on how you would test. It seems to me that the case rests on this: you have a substance that you think is psychoactive and you need to test it, because you need to establish whether it raises or depresses someone’s mental state. Does this mean that it has to be tested on a human being? If so, what are the arrangements for doing it? What are the safety provisions, given that some of these substances are extremely dangerous? Is there, therefore, a process that we can use when we think something is a psychoactive substance but the only way to find out is by finding a human being and testing it on them?

If that is not the case and the intention is to look at whether a substance is chemically similar to something else, you are back in the same routine of demonstrating that this is a small variant on something seen before. That is what I am trying to establish—the practicalities. Here is something. We have found it. We think it is psychoactive. Can we do something about it? Most Members of this House—there are a number of exceptions —think that something should be done. How do we know that something is psychoactive?

[Lord Bates]

That is a fair point, in that it is asking how this will be tested. We will come to those points because we are going to deal, to some degree, with medical testing and how it is possible to license some of these drugs so that they can continue to be tested. We were talking earlier about how universities and research institutions can continue testing on drugs such as cannabis. That is a key point: that testing will go on. I will make sure about that before Report.

Police and Crime Commissioners

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 3rd June 2015 Lords Chamber

[Lord Harris of Haringey]

To ask Her Majesty’s Government what plans they have to give additional powers and responsibilities to police and crime commissioners.

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

My Lords, we will develop the role of our elected and accountable police and crime commissioners to shape policing services to local needs and priorities, as they are now doing in commissioning victims’ services, setting out policing priorities and driving reform. During this Parliament we will set out further proposals to enhance collaboration between police and fire authorities.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the Minister for his Answer. Given that these police and crime commissioners are elected and accountable and were the flagship policing reform of the Conservative Government, what is the objection to allowing them properly to set the budget of the police service in their area? Why is there an arbitrary cap of 2% on the increase in the precept that they are allowed to impose?

[Lord Bates]

There is a limit because we have to control expenditure. However, the noble Lord makes a very fair point, which is that these are elected and accountable individuals. In Bedfordshire, for example, under the rules permitting a referendum to take place, there was a referendum on raising the precept beyond 2%. That was defeated by two-thirds to one-third just last month on a 65% turnout. I think that demonstrates that we support that principle.

Serious Crime Bill [HL]

Debate between Lord Bates and Lord Harris of Haringey

Monday 2nd March 2015 Lords Chamber

[Lord Bates]

My Lords, I shall speak also to Amendments 16, 22, 23 and 28. Control and order is a fundamental foundation of prison life. Without it, safety cannot be guaranteed and the rehabilitation of prisoners cannot take place. It is known that the throwing of packages containing contraband, including psychoactive substances—often inappropriately referred to as “legal highs”—is a key method of supplying drugs into prisons. In some cases, it is co-ordinated by criminal gangs involved in a wide range of criminality. The presence of new psychoactive substances in prisons, now drugs of choice among many prisoners, is a significant and growing problem that we must address urgently. These drugs are having an increasingly destructive impact on prison security, order and the welfare of individual prisoners, with increasing evidence of links to mental health problems and violent behaviour.

While it is currently a criminal offence under the Prison Act to convey a number of items including controlled drugs into a prison, non-controlled substances are not covered by that legislation. As such, those caught trafficking a range of new psychoactive substances have been able to evade justice. This is not acceptable.

Commons Amendment 9 will create a new offence of throwing or otherwise projecting any article or substance into a prison without authorisation. The clause will criminalise the trafficking of new psychoactive substances into our prisons and also captures the throwing of other articles into prison that could pose a threat to prison staff and prisoners. We must not tolerate those who damage prison health and order by throwing items such as new psychoactive substances into prisons. This new offence will help to stop this harmful practice.

Commons Amendment 10 seeks to prevent the unauthorised use of mobile phones in prison. The unauthorised use of mobile phones presents serious risks to prison security. They have been used to plan escapes and support the commission of serious crimes by organised criminals. In January, we saw the sobering reports of the conviction of a prisoner in Wandsworth prison who had used his mobile phone to arrange the importation of machine guns into this country from Germany. I am sure that we all agree that such use of mobile phones in prison is completely unacceptable.

The National Offender Management Service uses a range of techniques to detect and seize phones in prisons. However, despite the success of these methods, as mobile phone technology advances and the size of handsets decreases, it is becoming easier for prisoners to conceal illicit phones in prison. Disconnecting phones would be a cost-effective and future-proofed method to prevent the unauthorised use of phones in prison. Mobile network operators have asked for a clear legal framework to support disconnection. Amendment 10 will therefore enable the Secretary of State—or, in Scotland, Scottish Ministers—to make regulations conferring a power on the civil court to make a telecommunications restriction order. Such an order will require a mobile network operator to disconnect those SIM cards and handsets that are found to be in use in prisons without authorisation, effectively putting those devices beyond normal operational use.

In the unlikely event that a genuine customer’s phone is disconnected in error, NOMS will advise the mobile network operator that the telecommunications restriction order no longer applies. This will allow the network operator to expedite the reconnection of the service. This will be done quickly, without the need to return to court to vary the order. The customer’s phone can still be used to call the emergency services, should that need arise. As an additional safeguard, NOMS will report annually to the Interception of Communications Commissioner, providing the details and frequency of any erroneous disconnections for scrutiny by the commissioner’s office.

It is unacceptable that prisoners should continue to use mobile phones to carry out criminal activity outside prison. Having the power to disconnect illicit phones in prison will help to tackle that flagrant disregard for the restraints of their incarceration. Our view is simple: we must constantly seek ways to improve prison security. These new offences will do exactly that. The other amendments in this group are consequential on these two new clauses. I commend these amendments to the House.

[Lord Harris of Haringey (Lab)]

My Lords, this is pure curiosity on my part but, in relation to Amendment 10, might I understand how it would be possible to tell the communications providers that they should apply a telecommunications restriction order to a specific SIM card unless said SIM card had already been seized and obtained by the prison authorities—in which case, why would it be needed? Also, what steps have been taken to look at technological systems that would jam the signals inside prisons?

[Lord Bates]

Those are very reasonable points to make. On general jamming in the prison compound, I recognise of course that some individuals working within that compound need to have mobile devices, which can be used to communicate. By that, I am referring to the staff prison officers.

On the specific issue of SIM cards, the National Offender Management Service currently uses a range of different techniques to detect and seize phones already in prisons, including the use of detection technology and regular cell and prisoner searches. However, despite the success of these approaches, as mobile phone technology advances and the size of handsets decreases it is becoming easier for prisoners to conceal illicit phones and move them around the prison estate. It is for the Crown Prosecution Service to decide whether to prosecute an individual for possessing a mobile phone in custody. Due to the way in which mobile phones are typically used in prisons, with multiple prisoners potentially sharing one phone, it is often not possible to attribute handsets and SIMS to specific individuals.

In many ways, I agree with the noble Lord that identifying the number on the SIM card is tremendously difficult when you are still searching for the device. However, in the light of experience, we are simply trying to make it as difficult as possible for the individuals concerned to do this. NOMS uses a range of measures to stop phones and SIM cards getting into prisons. However, due to the high number of deliveries, post items and individuals entering and leaving prisons each day, it is impossible entirely to prevent SIMs and handsets making their way on to the prison estate.

Those are the points that I have, which I hope have been some help. There might just be some communications data on their way to help me. The signal of an unauthorised phone or SIM card can be detected without physically seizing the phone SIM in question. Blocking has a role but can be expensive to use. The answer is therefore probably quite straightforward—it is now, anyway. Through the detection devices we can identify a SIM, even if we have not managed to locate it, and block it in the process. I hope that with that general reassurance, the House will accept these amendments.

Counter-Terrorism and Security Bill

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 28th January 2015 Lords Chamber

[Lord Harris of Haringey]

My Lords, I suspect that my noble friend’s amendment highlights the fact that this is a list which has been cobbled together with some speed and that perhaps, in trying to ensure that all the bases were covered, the normal diligence of the Home Office has fallen apart. As to the specific point about unitary authorities, my noble friend Lord Rosser suggested that perhaps a county council could act on behalf of a unitary authority. The very point about unitary authorities is that you cannot do that. That would raise some very interesting and wide issues so I assume that that is a simple omission. Regarding the list on criminal justice, while I assume that the duty is placed on the individual institutions, there is nothing said more generally about the role of headquarters bodies or contracting bodies like the National Offender Management Service.

There are a couple of other possible anomalies that the Minister might want to address. I note that community health councils, which still exist in Wales although they have been long abolished in England, are listed, but that the successor of the successor of the successor bodies for community health councils in England, Healthwatch organisations, are not included. Will community health councils in Wales have a Prevent duty that does not apply to the bodies which now fulfil many of those functions in England? Finally, I do not see the Ministry of Defence Police in the list of police organisations.

[Lord Bates]

My Lords, I can say in advance that I will probably be writing to both my noble friend and the noble Lord on their points. As extensive as the briefing is, I am afraid that it has not pre-empted those two points of contracting out or the Ministry of Defence Police.

I will move the government amendments in this group shortly but first I will respond to Amendment 105A in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith—the Opposition Front Bench. This amendment would add a unitary authority to a list of specified authorities in Schedule 3 on page 47. This is an issue that I have discussed with her previously. I am pleased to assure her and others in your Lordships’ House that this amendment is unnecessary. Unitary authorities are already covered by virtue of a county or, more commonly, a district council. On that basis, I hope the noble Lord will feel able to withdraw the amendment. I can see a quizzical look from noble Lords on this but we say that whether it relates to a county or district council in England—that is, a person carrying out the function of an authority mentioned in Section 1(2) of the Local Government Act 1999, by virtue of a direction made under Section 15 of that Act—the provision would catch all. Noble Lords will have to take the word of our counsel on it. It would be a pretty easy amendment to make if we were wrong, and we would be happy to correct it; but we feel that unitary authorities are covered under the existing wording.

There are a number of government amendments in this group, regarding bodies listed in Schedules 3 and 4. Schedule 3 specifies the authorities subject to the duty to have due regard to the need to prevent people being drawn into terrorism. Schedule 4 specifies the persons who are subject to the duty to co-operate with panels established by local authorities to provide support for people vulnerable to being drawn into terrorism.

Amendments 106, 108, 111 and 116 to 118 will ensure that the appropriate authorities are subject to the duties, and that there are no gaps or inconsistencies. Amendments 106 and 116 add persons who are appointed by local authorities under certain delegated functions related to education functions. This ensures appropriate coverage of the duties. Amendments 108 and 117 add a person specified by Welsh Ministers in respect of a direction made in respect of a Welsh local authority’s education functions. This amendment ensures a consistent approach.

--- Later in debate ---

[Baroness Smith of Basildon]

I think that the noble Lord is making a good fist of it but it is not very convincing. He thinks there might have been a case or there could be a case where a child might let slip in a packed nursery that someone is going to Syria and that he or she could be taken with them. What we have here is a duty being placed on the staff of that nursery. Unless it is clear-cut what that duty is going to be and how it is to be undertaken by the staff, I struggle to find a good explanation for why it is in there. I hope that the paper arriving for him is enlightenment, and I will give him an opportunity to read it, but so far his explanation is not really very convincing. It is quite an onerous duty to be placed on staff, involving training, costs and so on. If he is able to offer any further enlightenment on why and how, I would be very grateful.

[Lord Harris of Haringey]

My Lords, while the Minister takes the opportunity to read fully the piece of paper that has just arrived, it seems to me that the argument that he is putting forward is about essentially providing a duty to support the Pursue function rather than the Prevent function. Of course, in a nursery and various other places information may emerge that could actually be important in terms of pursuing, preventing or interdicting a particular terrorist act. That is slightly distinct from what we are talking about here, which is preventing people from going down the road of becoming terrorists. The examples that the Minister has given have been more about the Pursue end of the counterterrorism strategy rather than the Prevent end.

[Lord Bates]

In that case, it is probably the fault of the rather poor example that I gave rather than the actual guidance as it is. Essentially, it says to a responsible person within any nursery, “There is a general Prevent review where we are trying to prevent people from being drawn into terrorism”. The responsible person would want to know, “What does that mean for us? If we had a circumstance where that came to light, what would we actually do? Who would we report it to? If we had any concerns, what would we do?”. The fact that that procedure is written down and that somebody has actually thought about what that procedure would be complies with the guidelines. It is the duty to have due regard to the guidance.

The amendments in this group relate to a number of matters concerning the duty itself and the guidance to be issued under it. I begin with the amendments that deal with parliamentary scrutiny of the guidance, which were tabled by the Opposition and my noble friends. Amendments 112C and 112CA would require that the guidance may be issued only subject to parliamentary approval. The Bill already provides that the Secretary of State may consult before issuing guidance. That consultation has been running for six weeks and closes on 30 January.

This public consultation has provided ample opportunity for interested parties to scrutinise and influence the guidance. The final guidance will have benefited from extensive consultation and expert input, including contributions to debates in your Lordships’ House.

The approach that we have taken to this guidance is not uncommon. I note that the Delegated Powers and Regulatory Reform Committee did not recommend any additional parliamentary scrutiny of the guidance in its report on the Bill. I take this opportunity to thank the committee, and particularly my noble friend Lady Thomas of Winchester, for producing its report so efficiently in order to support your Lordships’ scrutiny of this legislation. In view of this, and although we of course value the importance of parliamentary scrutiny, the Government do not believe that it is crucial for the guidance to be subject to parliamentary approval.

Amendment 112BA would require the guidance to “deal with equalities issues”. I assure my noble friend Lady Hamwee that this is an issue that the Government take extremely seriously. In drawing up the final version of guidance, we will certainly consider any equalities issues that have arisen since we published the draft for consultation. Of course, many of the specified authorities will already be subject to the public sector equality duty in the Equality Act 2010. I hope she is reassured that her amendment is not necessary in the light of these considerations.

Amendments 112BB, 112BC and 112CB would further increase requirements to consult on the guidance. I assure your Lordships that the Secretary of State will of course consult specified authorities before issuing guidance that affects them. As I have said, we are just coming to the end of a full public consultation on the guidance. However, it will not always be necessary to consult all specified authorities in all cases. For example, there might be a case where part of the guidance relating to just one sector is to be revised and it would not be appropriate to consult all specified authorities on such revisions.

Amendment 112BC would require specified authorities to consult their local or relevant communities. This might be good practice in some cases. However, the duty is on the specified authority, not their relevant communities, and this consultation would impose additional costs. There might also be cases where it would not be appropriate to consult communities. For example, in making amendments to the guidance to the prisons sector, it might not be appropriate to consult the prison population. As such, we consider this to be a matter best left to specified authorities to consider and to decide.

Amendment 112CB would remove reference to the Secretary of State as being the person who should decide whether a revision to the guidance is insubstantial. The amendment accepts that insubstantial changes should not require consultation and that someone must make the decision on whether a change is insubstantial. It remains the Government’s view that the decision should fall to the Secretary of State, given her responsibilities to Parliament. This is consistent with standard practice on this type of issue.

I shall now respond to the amendments that relate to the Secretary of State’s power to issue directions. Amendment 112DA would make the power to issue a direction subject to the specified authorities having the opportunity to make representations. Amendments 112E and 112F would require the Secretary of State to issue a report to Parliament after making such a direction.

I reassure your Lordships that a number of safeguards are already built into this direction-making power that make these amendments unnecessary. The legislation makes clear that the power can be used only where a specified authority has failed to discharge its duty to have due regard to the need to prevent people being drawn into terrorism, in the assessment of the Secretary of State. This narrows the circumstances in which the power could be used. The decision to issue a direction to bring about compliance could then be judicially reviewed, following the normal principles of such reviews.

Further, the direction is enforceable only by application to a court for a mandatory order. The court would not exercise its discretion to issue an order if it felt that the direction had been issued unreasonably. Of course, court decisions stand to be appealed against.

The Government would consider using the power only where other efforts to address the failure had been exhausted. The decision to recommend that the Secretary of State issue a direction would have been considered in detail by the Prevent oversight board, on which, as I have already mentioned, my noble friend Lord Carlile sits as an independent member. There would also have been detailed discussions with the specified authority beforehand, including the opportunity to make representations at that stage.

This debate has been an insightful introduction to the consideration of the Prevent duty. I hope that my remarks, in which I have been able to expand on previous statements, may reassure noble Lords. In that regard, I invite them not to press their amendments at this stage.

Asylum Seekers: Women

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 28th January 2015 Lords Chamber

[Lord Bates]

Certainly, as we have said, if the information is supplied to us, it will be investigated very thoroughly indeed. The circumstances there have been subject to regular investigations by Her Majesty’s Chief Inspector of Prisons. In relation to the UN rapporteur who asked to visit, that was a very last-minute request. We had set up a very detailed programme, including meetings with the Chief Inspector of Prisons and the Home Secretary, and had offered other meetings. We are open to further approaches in due course in the future.

[Lord Harris of Haringey (Lab)]

My Lords, is it not the case that in a number of instances the women who made these very serious complaints have been deported before they can speak properly to the investigators? Surely, that is not something that the Government condone.

[Lord Bates]

No, it is not, and that is why we want the information to be brought to our attention as soon as possible. We cannot act if it is not shared with us.

Counter-Terrorism and Security Bill

Debate between Lord Bates and Lord Harris of Haringey

Tuesday 20th January 2015 Lords Chamber

[Lord Bates]

On the point raised by the noble Lord, Lord Judd, we are seeking to bring them back but in a safe way. We recognise that they are our responsibility. At the moment it is not quite—I have to be careful about saying this—a revolving door with people being able to come and go as they will but there needs to be structure, security and some action to seek to prevent people going and, where that has failed, a managed return. The situation is very dynamic, which the noble Baroness, Lady Hamwee, I am sure appreciates and the terms of the permit of return will change over time. We are in the process of beginning to engage with countries to work with them on these problems and to say how the process should work. If we become too prescriptive in putting down in primary or secondary legislation what that process should be, it does not allow us to be more flexible in the case of the individual or the country concerned. That is why we are asking for a bit of flexibility but we are mindful that that requires judicial oversight. People are not stranded out there. They are given a permit to return. They are able to have a judicial review of the process and the actual permit or order has gone through an element of judicial scrutiny before it is made, so elements are there.

I was asked about the independent reviewer’s criteria and I have just got a note on that. His discretion is not constrained in the other areas and we believe that he would not want it to be constrained in this area. That is, I suppose, the point made about the Independent Reviewer of Terrorism Legislation overseeing this aspect of the order.

[Lord Harris of Haringey]

This follows on from the point that my noble friend Lord Judd has just made. This is a very serious step that is being taken. The Minister says, “We are simply managing the return and it is intended to be temporary”. What, then, is the purpose of Clause 3(8), which says:

“The imposition of a temporary exclusion order does not prevent a further temporary exclusion order from being imposed … (including in a case where an order ceases to be in force at the expiry of its two year duration)”?

What are the circumstances that require a provision for going beyond two years? Are we really saying that the managed return is going to take longer than two years? It seems to open up the possibility that this is in effect about permanent exclusion.

[Lord Bates]

The circumstances are not that the managed return is going to take more than two years; they are that the individual may be out there for longer than two years. The original order might lapse before he or she seeks to return to the UK and, in those circumstances, we would seek to renew it. We have talked about two separate elements. One is when the person arrives, and that relates to safe return. There are then the in-country elements of the temporary exclusion order, which would come into effect only once the person arrived back in the UK. That is the argument for it. We are seeking a degree of flexibility with a review process—

[Lord Harris of Haringey]

I am sorry; I am trying to follow the Minister’s argument. He is saying that two years might elapse before the individual comes back to one’s attention. Perhaps I am misreading it but Clause 3 states that the Secretary of State must give notice of the imposition of the order and that:

“A temporary exclusion order … comes into force when notice of its imposition is given”.

How can you give it if you cannot find the person? Therefore, what is the argument? Is it that the individual will disappear for two years, as you will not have been able to impose the order because you do not know where they are?

[Lord Bates]

I hope that I can help the noble Lord here. Perhaps the problem is my poor explanation of this issue. We are saying that of course notice is deemed to have been given but the person may well not present at a port seeking return to the UK until after a period of two years. At that point the order could be renewed so that their travel documents would be invalidated and they would have to seek a permit. That is the intention. I am aware that there will be other issues and I will look at this matter very carefully. I think that it has been helpful to hear the Committee’s views on this and to hear the questions that have been raised.

[Lord Bates]

We are not talking about throwing people out here. The context is that we are talking about people who went out to be involved in terrorist activity, potentially with an organisation that is seeking to plot and motivate those individuals to commit terrorist acts back in the UK. In the very helpful example given by the noble Baroness, somebody—let us call them Mr or Miss R, R standing for “Reasonable” —recognises that there is a temporary exclusion order. Their family has alerted them to that and they are concerned about it. They do not particularly want to initiate the judicial review when they are out there, although they would be entitled to. They just want to get back as quickly as possible and sort the whole thing out because they think a terrible mistake has been made. They arrive in Istanbul; flights are not an issue as there are several each day from there to London. There is also a consulate there so they would have access to consular services. For the reasonable person, their return could be managed in a matter of days. I do not need to carry on with Mr U —Mr Unreasonable—who seeks to challenge through judicial review, which he is entitled to do from outside the process, and seeks to dispute having any restrictions on his return. Clearly, that may take longer but our desire is that it should happen as quickly, smoothly and safely as possible.

[Lord Harris of Haringey]

This will be my last hypothetical. As a nation, we take the position that there are certain countries to which we will not deport people, particularly if they have a label around their neck, because it is assumed that they will be tortured. If an individual on whom a temporary exclusion order sits is in one of those countries and we have labelled them as somebody whom the Secretary of State reasonably suspects of being involved in terrorism-related activity and reasonably considers a danger to the people of this country, is it not likely that that country—one to which we would not deport people—will arrest them and potentially, because on our say-so this person is extremely dangerous, torture them? Where does that stand in terms of our normal position on human rights?

[Lord Bates]

It stands in the same position I gave in my earlier answer. If the Secretary of State had a reasonable expectation that imposing a temporary exclusion order on an individual in a particular country might give rise to torture, then that order would not be issued in those circumstances because of the impact it would have on their human rights. I hope that offers reassurance on that element.

Children’s Privacy

Debate between Lord Bates and Lord Harris of Haringey

Tuesday 6th January 2015 Lords Chamber

[Lord Bates]

This applies to everybody equally, and those with disabilities should come forward. Those guilty of abuse should be prosecuted. There is a straight line between what we are talking about, which may be general intrusion such as the publication of a photograph, and, of course, the publication of sexualised images of children, on which the full weight of the criminal law needs rightly to come down.

[Lord Harris of Haringey (Lab)]

My Lords, surely the examples that the Minister gave are very different. If there is a general crowd scene, and an individual child is not identified by name, that is distinct from circumstances where a child is identifiable and where consent has not been given. Under what circumstances does the public interest require that a child’s face should not be pixilated? Is there any case at all, in terms of journalistic integrity or the freedom of investigative journalism, that requires an identifiable child’s face to be published without consent?

--- Later in debate ---

[Lord Bates]

I acknowledge the work which the noble Baroness has done and her personal experience in this area, which I am aware of and which, obviously, we all understand. In the case of the protection of privacy, everybody—certainly every parent—understands the lengths to which we are all prepared to go to protect our children and our children’s safety. The question is about weighing the balance between that right to privacy and the right and privilege of free speech and freedom of the press, which is an underscored part of our democracy.

[Lord Harris of Haringey]

My Lords, the Minister has said that free speech is somehow undermined by publishing an identifiable child’s image. How is it undermined?

[Lord Bates]

I did not say that it was undermined. With respect to the noble Lord, what I actually said was that there is a balance, in a free society, between being able to produce and publish images and identifying those images—in other words between the human rights aspects of Article 6, which deal with protection and privacy, and of Article 8, which deals with free speech. The courts deal with that and the self-regulators deal with that. We can deal with it in a common-sense way without the need to criminalise everyone who produces an image of a child.

Children and the Police

Debate between Lord Bates and Lord Harris of Haringey

Monday 24th November 2014 Lords Chamber

[Lord Bates]

My noble friend is absolutely right, and I read that section of the report with great interest because it made a sound recommendation, which is that we should avoid looked-after children in care coming into contact with, and getting engaged in, the criminal justice system at too early an age. The police need to look at the range of options that are open to them in dealing with young offenders from such backgrounds—as they are available when dealing with other offenders in the wider community.

[Lord Harris of Haringey (Lab)]

My Lords, does the Minister accept the conclusion of the report that it is important that there are better relationships between children and the police, and the importance within that of safer school partnerships? If that is the case, does he understand that these are at risk because of the reductions in police budgets all over the country?

[Lord Bates]

We understand that police budgets are under pressure, and there is a reason why we have had to take that action. However, the number of police on the front line is increasing as a proportion. Safer school partnerships are an excellent idea but it is for governors and heads to make the decision to employ them. I should also add that there are encouraging statistics on the growth in the numbers of police cadets—up 24% in the first six months of this year. We anticipate that they will increase further. That level of engagement through police cadets in schools could be very powerful indeed.

Serious Crime Bill [HL]

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 5th November 2014 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Harris, for the way in which he introduced this amendment and, too, noble Lords for their contributions to this debate. In many ways, I thought that this characterised many of the debates we have had, in that—as I am sure my noble friend Lady Benjamin would accept—there is genuine willingness and desire to make sure that all possible loopholes are tightened, and that we take this opportunity to afford every possible protection to the most vulnerable in our society, by sharing information and evidence. I have read the NSPCC’s report and we have talked to the Crown Prosecution Service and to the national policing lead about cases being brought. We will seek to move things forward. If I can, I will comment for the record in response to the very helpful meeting that we had last night with the noble Lord, Lord Harris, and the noble Baroness, Lady Howe. As I am doing so, I will try to touch on some of the points that have been raised.

As the noble Lord, Lord Harris, knows, there is no difference between us in that we agree wholeheartedly that we need to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. As I said on Report, this House rightly remains united in its condemnation of the sexual abuse of children. What is more, it is determined to do something about it. I also paid tribute on Report to the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate.

I shall not repeat the description that I gave last time of all the offences that might be relevant in dealing with this type of behaviour. The House would not thank me for that, because the point is understood. There is a clearer point that the noble Lord, Lord Harris, raised today. However, it may be helpful if I address more specifically a couple of concerns raised on Report by the noble Lord, Lord Harris, and the noble Baroness, Lady Howe.

The noble Lord was keen that anyone seeking to persuade a child to send a naked image of himself or herself should commit an offence. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, this issue affects both male and female children. He was concerned that naked photographs of children might not be caught by the definition of “indecent”. I now have had the chance to look into that particular matter and am pleased to say that the noble Lord’s concerns may be misplaced. Section 10 of the Sexual Offences Act 2003 provides that it is an offence to cause or incite a child to engage in a sexual activity. The noble Lord quoted Section 78 of that Act and that telling word in law, about which, as a non-lawyer, I am trying to get up to speed, although it is a well known test: what could be considered in the eyes of a “reasonable” person, or what people could reasonably conceive of, as sexual intent. Clearly, by any stretch of the imagination, a request to send a photograph of a child would fall within that category of reasonableness. The noble Baroness, Lady Hamwee, also referred to that.

The definition of “sexual” is contained in Section 78 of the 2003 Act. That provides that an act is sexual if,

“it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances”,

in which it takes place,

“or the purpose of any person in relation to it … it is sexual”.

In other words, the context is crucially important. Therefore, it is entirely open to the court to conclude that, if a middle-aged man is sitting in front of a computer urging a child to send him a naked photograph—which was an example that the noble Baroness, Lady Smith, gave—or to pose naked before a webcam, his purpose makes the sending of that image by the child sexual, even if the child is not pictured undertaking any overtly sexual activity. The offence can be committed whether or not the victim complies with the request. The courts have convicted on that very basis and imposed substantial sentences of imprisonment; we discussed one case, which was actually a sentencing appeal, where the individual had been sentenced to three years in prison for precisely that offence under the order. In the process, the offender may also commit offences relating to the taking or making of indecent photographs of children.

I repeat my undertaking that the Government are going to take this very seriously. Despite all the legislation that we already have in place, none the less a gap needs to be filled. In particular, we need to explore further how best to deal with contact between a predatory individual and his victim where the messages are sexual in nature but where the victim is not being asked to respond in any particular way. Again, I want to get that wording precisely on the record because I think that is something that we all recognise.

I was particularly interested in the contribution of the noble Baroness, Lady Howarth, who of course through the Lucy Faithfull Foundation does tremendous work in this area. She pointed to the way in which paedophiles prey upon their victims and pass certain stages, and therefore how important it is to be able to tackle things as early as possible. Earlier in the Bill we discussed clauses relating to protection orders and the possession of a grooming manual being an offence. It shows that the direction of travel is recognising that we need to move further upstream in intervening at an earlier stage.

As part of that consideration, the noble Lord, Lord Harris, was kind enough to come to see me yesterday afternoon, together with the noble Baroness, Lady Howe. I was accompanied by my noble friend Lady Williams. I think they will agree that we had a useful discussion, and they have given us much food for thought as the Bill goes to another place. I agreed at that meeting, and I am happy to repeat it here on the Floor of the House, that officials would arrange a further early meeting with the NSPCC to discuss this issue further. The noble Lord is welcome to attend that meeting. We will also explore with the national policing lead and the CPS what additional guidance could be given to the police and prosecutors on the options open to them in tackling such predatory behaviours. My noble friend Lady Benjamin mentioned some scepticism, perhaps, about where the CPS was on this, but it will attend that meeting and I am very happy for her to attend as well. I accept the point that was made; an example was given where the police did not intervene as they could and perhaps should have done in the first instance, which then led to a more serious offence, which is precisely the type of circumstance that we are trying to prevent, and we are united in that. We are very aware of the need to look at this.

We are grateful to the NSPCC for the work it has done in bringing this to our attention. We will have that further meeting and of course there will be that other opportunity, as the Bill progresses through another place, for legislation to be introduced if needed. Of course, this is something that we will be coming back to time and again, particularly as the inquiry gets under way. Without in any way prejudging what it might recommend, it is clear that there is going to be some tightening of the law, probably, in the light of new technology and new evidence that comes to mind.

I say again that I am very grateful to the noble Lord, Lord Harris, for introducing the amendment. As this is possibly the last time I will speak on the Bill, I also pay tribute to all noble Lords who have contributed to its passage, particularly the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and, of course, the noble Baronesses, Lady Hamwee and Lady Walmsley, who contributed to a reshaping of the Bill.

The large number of government amendments which have been brought forward shows that we recognise the seriousness of this and we are united about it. We want to tackle the issues raised. We are listening and we are responding, and we will continue to do so in this very important area. With that, I wonder if the noble Lord might feel able to withdraw his amendment.

[Lord Harris of Haringey]

My Lords, I am grateful to all noble Lords who have contributed to this debate. I should express my gratitude to the noble Baroness, Lady Howe of Idlicote, who signed the amendment. She would have spoken to the amendment but she was, as we spoke, moving an amendment to the Consumer Rights Bill. We agreed that I would do this and she would do that, as we both have an interest in the same Bills. I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, to the noble Baronesses, Lady Howarth of Breckland and Lady Benjamin, and even to the noble Baroness, Lady Hamwee, who—despite her desire always to go through the minutiae of an amendment—indicated quite clearly that she supported the principles behind this. I am of course also grateful to my noble friend Lady Smith of Basildon for her support.

I pay particular tribute to the Minister, to whom I am very grateful for the way in which he has approached this. He has shown courtesy, and willingness to listen and to have a dialogue. That bodes well not only for the Bill before us today, but also for other Bills which may come before us with—no doubt—great frequency, given that we are talking about the Home Office. The essence of his argument is that, given what we have at the moment, it is open to the courts to say that the sorts of things we have been talking about are in fact sexual. However, I still hope that some form of words can be found, because I am concerned that if we leave things as they are it will create some lack of clarity as to what is or is not permissible.

Under those circumstances, that may mean that the Crown Prosecution Service—or, perhaps, the police, before they even take it to the Crown Prosecution Service—may set themselves a higher threshold for deciding whether or not they should take action. The noble Baroness, Lady Benjamin, gave us the example of the police having clearly made a judgment that something had not passed the threshold, yet it was on an escalator which could lead to all sorts of other things. In my view, the wording which has been identified as possibly covering these circumstances is convoluted, and it is quite difficult to follow. I would have thought it better for all concerned if the law was clear—which is always a good principle—and made it always illegal to communicate with a child in a sexual fashion or in a sexual way, or to elicit such a sexual response.

However, I am grateful to the Minister for indicating that the Government will take this seriously, and for the commitment that before the Bill progresses through another place there will be further discussions with the NSPCC and the Crown Prosecution Service, involving Members of your Lordships’ House if we are available. I hope that there would also be some involvement of the police, because this may not be an issue only for the Crown Prosecution Service. It may be the issue that has been identified beforehand.

The objective should be clear. We need to be satisfied that the law is clear enough; that people are able to act on it; that they understand what it means; and that it shifts upstream the ability to intervene, so that it is possible to intervene before harm is caused to the child. On that basis and on the basis of the commitment made by the Minister, for which I am grateful, I beg leave to withdraw the amendment.

European Arrest Warrant

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 29th October 2014 Lords Chamber

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

My Lords, the Government are close to agreeing a package of 35 measures with the European Commission and other member states that the UK will seek to join in the national interest. That package includes the reformed arrest warrant, with increased domestic powers to block arrest warrants where the offence is disproportionately minor or where the relevant conduct that occurred in the UK is not a crime. The discussions continue in Brussels.

[Lord Harris of Haringey (Lab)]

Given that nearly 100 foreign criminals are removed from this country under the European arrest warrant every month, can the Minister give us a guarantee that we will have opted back in by 1 December? When will this be put to the House of Commons? When it is, because of the level of opposition to the European arrest warrant by the Taliban majority of the Eurosceptics in the Conservative Party, will the Government be relying on Labour votes for us to opt in, in the national interest?

[Lord Bates]

My Lords, the noble Lord is right to point to the importance of this; 5,000 foreign criminals have been deported since it came into effect in 2009. Of course the desire is to opt back in by 1 December, but this needs to be negotiated and there need to be agreements. Those negotiations are continuing. Her Majesty’s Government’s position is that we want to be there by 1 December. In terms of when the House will have the opportunity to discuss this, discussions are ongoing between the business managers to make time for that to happen before 20 November.

Police and Crime Commissioners

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 29th October 2014 Lords Chamber

[Lord Bates]

My noble friend makes a fine point. Police and crime commissioners, through the press, through discussion and through the elections, are much more widely known and recognised. Therefore, people will increasingly come to them with their issues, to which they can respond.

[Lord Harris of Haringey (Lab)]

My Lords, is it not the case that a fifth—it may be more, but it is seven or eight at least; no doubt the Minister can tell us—of the elected police and crime commissioners are under current or recent investigation by the IPCC for fraud or other misdemeanours? Are the Government, or at least the Conservative part of the coalition, still intent on giving PCCs more powers and more responsibilities and doing nothing about the accountability mechanisms?

[Lord Bates]

I thought that when the noble Lord began by speaking about seven or so police and crime commissioners, he was referring to the number of former Labour MPs and Ministers who are now holding those important positions in this country. The reality is that of course they are accountable to the police and crime panels, but ultimately they are accountable to the people who elected them.

Serious Crime Bill [HL]

Debate between Lord Bates and Lord Harris of Haringey

Tuesday 28th October 2014 Lords Chamber

[Lord Harris of Haringey]

I shall try not to intervene too often, given that we are on Report, but I would be grateful for this clarification. The Minister has referred to Section 127 of the Communications Act, which requires the message from the perpetrator to be,

“grossly offensive or of an indecent, obscene or menacing character”.

He also referred to Section 1 of the Malicious Communications Act where the offence is,

“with intent to cause distress or anxiety”.

In the sorts of cases that I have been talking about, there is no intent to cause distress or anxiety. There is no need to be,

“grossly offensive … indecent, obscene or menacing”,

because this is about coaxing the young person through flattery to send a naked image of themselves. Clearly, if it falls into these categories, there is no question that the Act covers it, but these are communications of a different nature.

[Lord Bates]

I accept that—and this may not endear me to the noble Lord, but I am only halfway through my speech. I will go through some other laws that could catch that particular matter. If it is not the case, I shall certainly come back and address the specific one that he deals with.

It has been pointed out that the Section 1 offence in the Malicious Communications Act is not suitable because it is a summary one and subject to a six-month time limitation on prosecutions. I assure the House that the Criminal Justice and Courts Bill includes an amendment to the 1988 Act, making that offence triable either way, which would have the effect of removing the six-month time limit. The material, depending on the content, could also be caught under the Obscene Publications Act 1959. There was a recent conviction under the Act which captured a paedophilic sexual discussion being held in a private e-mail conversation between paedophiles. This significant conviction demonstrates that the offence can be made out by a publication to one person.

If the contact or messaging involves the creation of indecent photographs of children under the age of 18, legislation such as the Protection of Children Act 1978 could be used against those circulating such images if, for example, an adult is inciting a child to self-produce indecent images. That was a specific issue that the noble Lord focused on. Section 160 of the Criminal Justice Act 1988 covers the simple possession of these images. There are a range of offences under the Sexual Offences Act 2003, including laws on attempting these offences, which would very likely cover this behaviour, its consequences or intended consequences. I shall spare the House a list of all the offences in the 2003 Act that might be engaged, but let me offer one example. Under Section 10 of the 2003 Act it is an offence for a person over 18 to cause or incite a child to engage in sexual activity. This carries a maximum 14-year sentence. Depending on the individual circumstances, this offence would very likely come into play when sexual communications were exchanged with children, or when they were coaxed, or when non-sexual communications were intended to elicit a sexual response.

There are other offences to deal with exploiting children through involvement in pornography and prostitution. I take the point that the noble Baroness took from the example in Manchester. But this is something that is constantly under review, and has to be, as part of wider efforts to tackle this issue. We have had conversations with the Crown Prosecution Service, which does not feel that there is a gap in the law at present. We have had conversations with the national policing lead, who also does not feel that there is a gap at present. These discussions are ongoing, and I will be very happy to include noble Lords—and specifically the noble Lord, Lord Harris, in the context of this amendment, as well as the noble Baronesses, Lady Howe and Lady Benjamin, in some of the discussions with the CPS and the police to see what needs to be done and whether the provisions are sufficiently robust to deal with the specific examples and case studies that they have given.

Even if the messages are not themselves illegal, if their distribution or sending to a child is carried out as part of a course of conduct that alarms the child or causes distress—something raised by a number of noble Lords—this could amount to a criminal offence under the Protection from Harassment Act 1997. On the face of it, therefore, it would appear to be the case that the current law, if applied properly, already does what the amendment seeks to do. We should be very wary of adding new offences to the statute book if to do so would result in an unnecessary and undesirable duplication of the existing criminal law. However, the Government are always open to suggestions that could strengthen the law in this difficult and sensitive area.

I agree with this amendment to the extent that we want to be absolutely sure that offenders who communicate sexual messages to children or elicit sexual replies are appropriately dealt with by the criminal law. We are therefore investigating with the Crown Prosecution Service and the police to ensure that there are no such gaps that could let those who offend against our young people in this manner escape justice. I am very happy to include noble Lords in that discussion. As part of our ongoing consideration of this issue, I have extended that invitation to discuss. I trust therefore that the noble Lord might accept that, in this regard, it is not a “resist” but that the Government are considering carefully what is being proposed, in the light of the existing legislation and to continue that discussion. In the mean time, I ask him to consider withdrawing his amendment.

[Lord Harris of Haringey]

My Lords, I am grateful for the support that this amendment has had from the noble Baronesses, Lady Howe and Lady Benjamin, as well as my noble friend Lady Smith. The Minister said clearly that he shared its objectives. I have the advantage of seeing his colleagues behind him and I noticed that not only did quite a number of them seem to share the objectives but they were also not entirely convinced by some of his suggestions that these offences were met by the Bill.

I shall deal quickly with the noble Baroness, Lady Hamwee. She did not disappoint us in that she made her usual series of very precise and small points on the amendment. I am clear that this is not a professionally drafted amendment or one that would meet all the best requirements of those who sit in garrets in the Home Office or the Ministry of Justice producing these things. My hope was that the Minister would say that there were sufficient points here that he would come back to us at Third Reading with a beautifully professionally drafted amendment. However, I am not sure that the points that the noble Baroness, Lady Hamwee, made were terribly helpful. She talked about the recent amendment on revenge porn. The issue there was publishing material that had been shared in a private capacity more widely because the relationship had broken up. This does not apply in this instance; this is about eliciting an image from a child, not necessarily to share—although that might happen—but simply to obtain the image. So I am not sure that that change necessarily helps us on this issue. I am sure that we could all struggle with defining age and knowledge of age and we could no doubt find ways in which this proposal could be improved. I hope that the Government can accept that there are at least some points here that need to be looked at.

The Minister then went through, as predicted, some of the various sections that we talked about. Most of them require an intent to cause distress or anxiety, or that the matter is grossly offensive, or of an indecent, obscene or menacing character. As I have said repeatedly—I do not think that the Minister has addressed this issue—those are not the circumstances in which such messages are sent. They are sent not to cause offence to the child concerned, but to make children feel sufficiently comfortable to be able to share naked pictures of themselves.

The Minister referred to the Sexual Offences Act 2003, and causing or inciting a child to engage in sexual activity. I appreciate that there is a fine line to be drawn here, but I wonder whether it would be sufficient to achieve a conviction under Section 10 of that Act if all that the perpetrator has done is to persuade the child to stand naked in front of a webcam. No sexual activity is taking place there, so there are some issues around that.

The provision in the Protection from Harassment Act 1997 depends on whether the sender knows or ought to know that what is happening amounts to harassment of another. Harassment includes alarming a person or causing a person distress—but the child concerned may not be alarmed or distressed at the point when the actions take place. The child may only realise many years later what they have done, and what the implications are. Again, I am simply not convinced that this is covered. Scotland has legislation covering this point; there is a gap in England, Wales and Northern Ireland.

I am disappointed in the Minister’s reply. I take his offer for further consultation at face value, but I am conscious that Third Reading is only just over a week away, and I hope we can make some progress before then. Without that, I would feel that we need to return to these issues at that stage. However, on the basis of the promised discussions, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Bates]

My Lords, the noble Baroness is absolutely right again, in the sense that technology is the problem and therefore technology needs to offer the solution. Simply put, the numbers and the scale—of course, she has had those briefings and I have had them, too—are both distressing and mind-blowing in terms of their reach. As the technology is not limited to, and does not respect, geographies or jurisdictions, the matter is a global one. Therefore, we need to work very closely with the industry to ensure that this can be done.

I want to cover some of the issues that are being addressed at present which noble Lords may not be aware of. We recognise the concerns that the noble Lord has raised about the use of the internet to store and circulate indecent images of children. We fully accept that more needs to be done to address this issue, but I hope to be able to persuade the noble Lord that legislation is not required at this point, although we continue to keep that option under review.

We believe that the internet industry operating in the UK has taken significant steps, on a self-regulatory basis, to tackle the availability of indecent images online. The internet industry in the UK has worked closely for many years with the Internet Watch Foundation and the Child Exploitation and Online Protection command of the National Crime Agency to tackle illegal images. We recognise the support that responsible internet service providers have given to the Internet Watch Foundation, both financially and through taking action on the Internet Watch Foundation’s list of web pages identified as containing illegal images by either taking down such sites, if they are hosted in the UK, or blocking access to them if they are overseas.

The public and businesses can report images to the Internet Watch Foundation, which assesses them and determines whether they are illegal. Indeed, the Internet Watch Foundation took more than 51,000 reports from all sources last year. If the site containing the image is hosted in the UK, the details will be passed to law enforcement agencies, and the ISP will be asked to take down the web page using the “notice and take down” process. In 2013, the Internet Watch Foundation found that 47% of UK child abuse web pages were removed within 60 minutes. Thanks to the work of the Internet Watch Foundation, and the internet industry, less than 1% of the global total of indecent images of children is hosted in the UK.

However, we are not complacent, and we recognise the need to adapt to changing uses of technology by paedophiles. As the Prime Minister made clear in his speech to the NSPCC in July last year, we need to do more to eradicate these images from the internet and, in particular, ensure that the internet industry plays its full part in doing so. We have been working closely with the industry, and with its support we believe that significant steps have been taken towards removing these images. We have asked internet search engine providers such as Google—which was referred to by the noble Baroness and also by the noble Lord—and Microsoft to make changes to their search mechanisms, and these measures have been effective in preventing access to child abuse images.

We are also creating a new child abuse image database, using much of the same technology that the noble Lord, Lord Harris, referred to in setting out and introducing his amendment. This will enable the police to identify known images more quickly on suspects’ computers and will improve their ability to identify and safeguard victims from the images. A key part of this is not just about lining up prosecutions by identifying these images or getting the images taken down; it is about realising that the children behind them are vulnerable victims and need to be protected and get the help and support that they need.

Not only do we want the industry to remove such images, we want it to use its technical skills and capability to help develop the technical solutions to prevent the dissemination of these images online. The Home Office and the US Department of Justice have created a taskforce that provides a platform for industry to develop technical solutions to online child sexual exploitation. This work is ongoing under the chairmanship of my noble friend Lady Shields.

The UK will host a summit in December on online child exploitation. We have invited representatives of key partner Governments and organisations, including the internet industry, to participate in the summit, which will focus on protecting the victims of online child abuse and examine how we can work internationally to prevent children being exploited online.

The Government are very clear that those who provide services online, particularly those where images can be stored—a point that the noble Baroness, Lady Howe, made—have a responsibility to take action to prevent those services being used for the purposes of storing and sharing indecent images of children. In that regard, as she rightly said, we should have zero tolerance. We believe that internet service providers operating in the UK have a good record in this respect, both through their support for the Internet Watch Foundation and through the actions that they are taking to support the Prime Minister’s call for action.

Against this background of good co-operation and progress at present, we believe that the current system of self-regulation has been effective, and we are not persuaded at this time that more would be achieved by placing a legal requirement on these companies. In that regard I hope that, having heard the progress that has been made and our undertaking to keep this under review, the noble Lord will feel sufficiently reassured to consider withdrawing his amendment.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble Baroness, Lady Howe, and my noble friend Lady Smith for the support that they have given to this amendment. To the noble Baroness, Lady Hamwee, I say that, as I am not doing this on behalf of the Government or anyone else, I am not engaged in a lengthy process of consultation with internet service providers, but I would make the point that this is a very soft change. It is simply asking them to consider and, where they think there is a material risk, to take reasonable steps. It is difficult to imagine any internet service provider, unless it wants to provide a service for expressly illicit purposes, finding this difficult.

I am of course encouraged by what the Minister has described. Most of it does not in fact apply to the issues that I have raised, because this is about images stored for private purposes rather than public purposes. The web page stuff and the work of the Internet Watch Foundation, with which I am very familiar—I think I am an ambassador or a champion; I cannot quite recall what the certificate says—are clearly about public-facing material which people may access. All that work is extremely good. I accept that many internet service providers are extremely responsible and are operating as one would hope in a self-regulatory way. I think this would have helped encourage those that are not being quite so public-spirited or sensitive to these issues to be more so in the future.

However, in the light of the Minister’s undertakings that this is something that will continue to be looked at, I beg leave to withdraw the amendment.

Parliament Square: Occupy Protests

Debate between Lord Bates and Lord Harris of Haringey

Tuesday 28th October 2014 Lords Chamber

[Lord Bates]

I understand the point my noble friend is making, but what is a light touch when you are faced with a protest that begins at 50, grows to 100, and then grows overnight to 150? The potential for that to get out of hand, and the risk to the public, is something which the police clearly take seriously, and they are right to do so.

[Lord Harris of Haringey (Lab)]

What communications were there between Ministers in the Home Office and the Metropolitan Police on the nature of the policing of this protest?

[Lord Bates]

The noble Lord will be aware that as a result of passing the Police Reform and Social Responsibility Act 2011, which this House did, the Home Office published specific guidance, which I have here and which I will place a copy of in the Library, stipulating exactly what was permitted, what was not permitted, what approval needed to be sought and even stating on page nine the enforcement actions which we would ask the police to do. Having done that, and having published it in this place, the police deserve our support.

Foreign National Offenders

Debate between Lord Bates and Lord Harris of Haringey

Wednesday 22nd October 2014 Lords Chamber

[Lord Bates]

I hear that. The Government will make their announcements in due course. Of course, just because we are not part of the Schengen agreement in terms of the movement of people does not mean that we cannot share information. That will be helpful not only to this country but to the countries in the Schengen area.

[Lord Harris of Haringey (Lab)]

My Lords, my noble friend Lady Smith told us that on occasion people have not been deported because the airline tickets have not been booked. Will the Minister tell us how many cases of that have taken place, and whose responsibility should it be to book those tickets?

[Lord Bates]

I think that the figure was taken from a couple of case studies mentioned in the NAO report; they are not actually grouped. But we absolutely recognise that there needs to be better co-ordination across government and that is why we now have a cross-government team that comes under the National Security Council taking this issue seriously, taking it forward and introducing the measures that we have put forward.