Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, I should declare my interests as chair of the Audit Panel for the Metropolitan Police and the Mayor’s Office for Policing and Crime, and as an adviser to KPMG, Airwave Solutions, Lockheed Martin UK and a number of other companies that provide services to police forces around the country. It is a privilege to follow the noble Lord, Lord Condon, in the debate. I, too, want to speak primarily about Part 1 and the new National Crime Agency.

The Government’s intention to create a National Crime Agency has been known about for almost two years. However, we have yet to hear a clear explanation of what the problem is with the existing arrangements that these changes are required to fix. I am sure that the Government’s policy is, “If it ain’t broke, don’t fix it”, but perhaps it goes a bit further than that by saying, “Even if it doesn’t need fixing, take it to pieces anyway”, because we are not at all clear about which problems will be solved by these reorganisations. Given that the Government’s intentions have been clear for the past two years, we have to ask what has been going on during that period. We still do not have a definitive version of the strategic policing requirement, and we do not see any sign of the NCA framework document, even in draft, although it is pivotal to understanding how the new arrangements will work.

My understanding is that, because of this pending reorganisation, senior people in SOCA and the other agencies have spent the past two years sitting in meetings arguing with officials from the Home Office and other bodies rather than devoting themselves to their main purpose, which is that of fighting serious and organised crime. But all the meetings that have taken place over the past two years seem to have failed to produce anything definitive on how the new arrangements are supposed to work. What we are told about the likely organisational structure suggests that we are going to have a series of silos that are spatchcocked together. If that is all it is, frankly it is not clear why the reorganisation is better than a general injunction on the different organisations that currently exist to work together better. Moreover, there remains a lack of clarity about one of the central issues as to how the agency is going to work—a lack of clarity about the powers of tasking and co-ordination, whether voluntary or mandated.

We spent many happy months in your Lordships’ House discussing the Police Reform and Social Responsibility Act. That Act clearly states, as does the policing protocol, that elected police and crime commissioners are responsible for the totality of policing within their jurisdiction and that they alone are publicly accountable for the delivery and performance of policing. That responsibility is placed clearly in their hands on behalf of the electorate.

Under this Bill, directed tasking arrangements allow the Home Secretary to empower the director-general of the NCA and allow the director-general of the NCA to task police forces and other law enforcement agencies to carry out specific activity. While the PCC would have to be notified when such a direction is initiated, this tasking would in practice interfere with the operational independence of the chief officer as set out in the Police Reform and Social Responsibility Act, and interfere with the police and crime commissioner’s responsibility for the totality of policing. My prediction is that, unless this is handled correctly and there is rather more substance to it than is contained in the Bill, conflict is going to be inevitable.

The whole point of these new accountability arrangements created by the Government is that police and crime commissioners will be elected with a mandate to deliver in respect of local concerns. That is what they are there to do. What is going to happen when the elected police and crime commissioner for Loamshire or some such place decides that his or her number one priority is going to be addressing volume street crime in Loamshire and its larger towns and yet suddenly there is a directive to divert resources from Loamshire to somewhere else to help deal with particular problems of organised crime, when for the public of Loamshire—the electorate that elect the police and crime commissioner—organised crime is not a particular issue facing that local community? How that is going to be managed is not clear from the Bill.

Indeed, the whole Bill poses a series of questions. Who is accountable to the public for activity that is being directed? When things go wrong—as they will—is the Home Secretary or the NCA director-general liable for any repercussions from this activity? How is this going to interfere with the PCC’s setting of local strategic priorities and indeed that accountability of PCCs to the public that the Government tell us is so critical? Will the police and crime commissioner for Loamshire or for any other area be able to veto a direction using his or her powers? Presumably that will be the case if it is a voluntary direction because that is my understanding of what “voluntary” means. What if it is not? What are the implications if the chief officer of police accepts a voluntary direction but his or her police and crime commissioner says, “No, I do not think that is in the interests of our local community, which I am elected to defend”? How is that going to be resolved? Who will be responsible under those circumstances?

Of course, the Government have got a let-out clause, as you would expect. I am sure the Minister is aware of paragraph 30 of Schedule 3, which gives the Home Secretary the power to amend the requirement to get prior consent before issuing directions. So we are actually being told that this is not going to be voluntary but there will be this power to dispense with the requirement to have prior consent. I suggest that this is going to create more conflict and more difficulties. Again, perhaps it is not very helpful that the detail has not yet been worked out.

This situation is made all the stranger when you observe that this new agency seems to have virtually no governance arrangements. The director-general reports and is accountable to the Home Secretary, who is in turn accountable to Parliament. There is no board; there are no non-executives; there are not even a few token elected police and crime commissioners sitting in that structure perhaps to provide some coherence with the expressed wish of the local electorate about police and crime priorities. There is no mechanism for scrutinising what is happening. Even the elected police and crime commissioners—which some of us were not hugely enamoured of—had these scrutiny arrangements created within the local authority structure. There is no parallel here.

Of course, the legislation contains promises that the director-general will be operationally independent, but what will that amount to in practice? How will it be enforced, and who is going to scrutinise that operational independence in the absence of any of those governance structures? Let us be clear: operational independence is not all that it might appear or be cracked up to be. It certainly does not apply to policing equipment. I suspect that most chief officers of police would think that their choice of equipment is very much part of their operational decision-making. I do not personally always agree with them on that, but paragraph 1 of Schedule 4 allows the Home Secretary to make regulations on the use of specified equipment and the NCA director-general will be required to comply. There is not much operational independence there. This is the Home Secretary, to whom he or she is accountable, saying, “You will or will not use this type of equipment”. That hardly sounds like operational independence to me.

Then there are the very strange provisions under paragraph 4 of Schedule 5. I am sure that the noble Lord, Lord McNally, will explain to us precisely why these are here. Paragraph 4 creates an advisory panel; a new quango, if you like—from a Government who promised us a “bonfire of the quangos”—and what is this new advisory panel going to do? It is going to give advice to the Home Secretary on whether the director-general has sufficient training to carry out his operational powers. I wonder where they dream up things like this—which cellar in the Home Office is responsible for thinking up new committees to do this sort of thing.

This proposal is certainly not a carry-over from the legislation that created the Serious Organised Crime Agency, because it was not thought necessary to have an advisory panel to decide whether or not the director-general of the Serious Organised Crime Agency had the necessary training to carry out their operational functions. So why is it here? Is it because the Home Secretary is planning to replace the current director-general with an individual whose qualifications are so questionable that a panel is needed to test them? That is as may be, but paragraph 5 explains how the Home Secretary can ignore the advice of that panel under any circumstances.

We have to question what model of organisation was used for devising the governance structures for the National Crime Agency. The best example of that, one with which the Home Office is intimately familiar, is the relationship between the Home Secretary and that paragon of effective service delivery, the UK Border Agency. That relationship has worked so well in recent months, between the Ministers and the people with executive responsibility of the agency concerned—two impossible demands before breakfast and the agency, of course, has to comply.

Finally, I will say a word about Clause 2, which allows the Home Secretary by order—admittedly subject to the super-affirmative procedure—to add counterterrorism to the functions of the National Crime Agency. I have to question whether a decision of that magnitude should properly be done simply by order. Let us also be clear: if counterterrorism becomes part of the functions of the National Crime Agency, it will totally transform the National Crime Agency. This body, that has taken two years in gestation merely to talk about a series of organisational silos spatchcocked together, will suddenly have spatchcocked onto it an even larger organisation completely distorting and changing the priorities.

As the noble Lord, Lord Condon, said, it may or may not make sense ultimately to have counterterrorism as a function of a national agency of that form. However, having been involved in the convoluted discussions to get the current structure in place, I think you have to be very clear about the case you are making before you embark on those changes and very clear about why you want to go ahead with them. The experience in other countries—according to the FBI, for example—is not always a happy one in terms of relationships with local forces regarding counterterrorism. There is a real danger of divorcing a counterterrorism elite squad from ordinary policing, not only in terms of intelligence but also in managing community relations following operational decisions.

I am sure the intentions of the Bill are fine. The Government had two years to move from intentions to detailed proposals but in those two years we have yet to see the fruits of their labour and to understand exactly how these new arrangements are intended to work.

Stephen Lawrence

Lord Harris of Haringey Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Henley]

My Lords, on occasions, I have heard allegations that one in three people think that the police are corrupt, but other surveys seem to show relatively high levels of satisfaction with the police, both in the white community and in the BME community. It is much the same for both groups, although it varies once one gets into sub-groups. I note what my noble friend said about the need for a new independent inquiry. That has not been ruled out and it is a matter that my right honourable friend the Home Secretary will consider in due course. As the noble Lord, Lord Blair, put it, at the moment it is right for the Met to conduct and complete its internal review and for this to move on in the appropriate way. I think he was also right to stress the need not to rush on too fast in these matters.

[Lord Harris of Haringey]

My Lords, public confidence in the police is extremely important. If there is an underlying feeling that the police, either in these circumstances or in others when allegations have been made, have acted in a way that is not with full integrity and is corrupt, is the Home Office satisfied with the current arrangements within the police service for monitoring and reassuring the public about the integrity of officers? What steps does the Home Office envisage putting in place to ensure that priority is given to this work when the new regime of police and crime commissioners comes into force later this year?

[Lord Henley]

My Lords, the noble Lord is absolutely right to talk about the importance of public confidence in the police. If we do not have public confidence in the police, we move to a rather different form of policing and one which neither he nor I would ever wish to see. I shall not go wider into the debate on police and crime commissioners at this stage as I appreciate that there are differences of view between the noble Lord and myself about them. We believe that they will bring greater accountability and that, in future, we shall have better policing as a result. As I made clear in the Statement, my right honourable friend takes all allegations of this sort extremely seriously. If any allegation, and particularly this one, is proved to be true, that can undermine public confidence in the police force which he and I and everyone else in the House considers so important.

Criminal Records Bureau

Lord Harris of Haringey Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Henley]

My Lords, the Bill has not completed its passage and it will obviously have to come back to this House after consideration of Lords amendments in another place. After completion, when we have had our last chance to discuss these matters, we will issue that guidance.

[Lord Harris of Haringey]

Further to that question, the noble Baroness suggested that it would be discretionary for the ISA to pass such information to the police. I had understood the Minister to say that his intention was for that information to be passed to the police automatically, so that they could use their discretion. Does he agree that having two sets of discretion in this area is likely to lead to individual cases falling through the net, which could be very damaging to the children who might subsequently be abused?

[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.

Police and Crime Panels

Lord Harris of Haringey Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Henley]

My Lords, I have made it quite clear that we are going to fund the panels properly. I am not going to respond to the specific allegation made by the noble Lord, but if necessary—if I think it appropriate—I will write to him. What I am making clear is that we think we are providing appropriate funding for the panels to do the job that was set out in the police Bill last year. We think that they can do that because their job is to look at what the PCCs are doing.

[Lord Harris of Haringey]

My Lords, the experience in London is that so far the only information to have emerged from the Mayor’s Office for Policing and Crime, which is a surrogate police and crime commissioner, is a series of listed decisions on the website. How on earth is a police and crime panel outside London going to get to grips with the detail underlying that and the issues determined by the police and crime commissioner, with money that is insufficient to employ more than one or two people in support of busy local authority councillors who will have many other roles in addition to that on the panel?

[Lord Henley]

My Lords, I think that the noble Lord misunderstands—dare I say it?—how local authorities work. Obviously, the funding will be available to provide for some staffing to assist that panel, but within that local authority there will be other officers doing other jobs who will also be able to assist in that role. That does not require the extra funding that he described. However much money the Government offered, no doubt he and others would say that it was inadequate. We made an announcement on how much it would be. Having reviewed it, we have since increased it. We think that it will be sufficient.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Lord Harris of Haringey]

4: Clause 64, page 53, line 9, at end insert “and includes the monitoring of verbal, sign language and written communication between the supervised person and such children”

[Lord Harris of Haringey]

My Lords, this group of amendments deals with the vetting and barring of people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.

The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.

I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,

“revises the definition of regulated activity which includes all the positions covered by vetting and barring arrangements. If positions are not included in regulated activity employers will not have to check people who work in these roles and even if they do, they will not be told if the individual is barred from working with children or vulnerable adults”.

The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:

“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements”.

--- Later in debate ---

[Lord Henley]

My Lords, I will again remind the noble Lord and the House that we are at Third Reading. I shall repeat the words I used. If the police judge it relevant to the post applied for they may disclose it on an enhanced certificate—no more and no less.

[Lord Harris of Haringey]

I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.

The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.

Because of the developing thinking that has taken place in your Lordships’ House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,

“regular and close contact with children”.

Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.

The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.

It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships—I accept not all—believe that there is a more sensible way.

The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance—my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision—I beg leave to withdraw my amendment.

Amendment 4 withdrawn.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Bichard]

My Lords, I do not want to detain the House by repeating any of the points that I made in speaking to Amendments 53 and 54 the other evening, but I do not think that we have yet reached an entirely satisfactory outcome on these issues. I welcome the Minister’s commitment to further discussions, which he has repeated to me since that debate. I hope that we will able to have those discussions before Third Reading, because I think there is continuing unease about this issue within the House and among children’s charities and the wider public.

Although I know that we trying to reduce bureaucracy, I am beginning to worry that we are in danger of making an extremely complex system even more confusing by the way in which we are distinguishing between places, whether they are specified or not, and organisations —we have heard the distinctions drawn between colleges and schools and between paid and unpaid workers. I hope that we can perhaps move to a much simpler statement. The amendment may not be the right form of words, which is why I welcome the further discussions, but I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever settings, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice. Regulated activities and the barring system are an additional protection, but we should have a basic position which ensures that anyone working with children regularly can be checked by the organisation, because that is the only way in which an organisation can be sure that it is doing all it can to reduce the risk to that child. My concern will always be how we reduce the risk to the child, rather than how we drive down the bureaucracy.

[Lord Harris of Haringey]

My Lords, I want to say how much I agree with the noble Baroness, Lady Sharp, but I would want to go a little further than she did. She was applying her remarks very much in the context of colleges and so on, but the principle applies to a younger age group as well. I hope that when the Minister responds to the noble Lord, Lord Bichard, and, I hope, indicates that further discussions can take place before Third Reading, he will consider the points that have been very clearly made.

The Minister has talked about the importance of proper supervision in reducing the risk of improper conduct. He said that it would also reduce the risk of improper relationships developing. The real difficulty in this category is that there will be individuals who have not been checked who will be in close, regular contact with children. They will be supervised, so nothing untoward can happen in that context, but something may happen elsewhere. A relationship may build up. The noble Baroness, Lady Sharp, talked about relationships that were pursued in pubs, with underage drinking, but with younger children the context could be very different. It could be a kick-about in the park or whatever. That is where the difficulty arises.

When we debated these issues the other night, the Minister talked about the proper role of parents. I do not think anyone here doubts that parents have an incredibly important role in this, but parents’ main message to children is about stranger danger, and these individuals are not strangers. They are individuals whom the child or young person meets in the context of what is regarded as a secure and safe setting. When the Minister responds, I hope that he will address that issue and how we might take it forward. Can he give us some indication as to whether his concept of supervision includes some means of ensuring that contact is not developed outside, whether by way of e-mails, Facebook or anything else?

Also, there has been a lot of discussion that has muddied the waters about enhanced CRB checks and checks using the information available to the Independent Barring Board. The reality is that 20 per cent of those who are on the lists maintained by the Independent Barring Board have not been through the criminal justice system, so they will not show up through those criminal record checks. The point that has been made about providing a facility whereby colleges, schools or youth clubs can ask if they think it is appropriate for those checks to be made does not necessarily go far enough unless you are able to take on board the issue of the information that is held by the barring authorities.

Nobody is pretending that these are simple issues, but I hope that when the Minister responds he will recognise that they are issues that need further work and that we can try to get this right before Third Reading.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Rosser]

My Lords, the amendments in this group remove the distinction that the Bill makes between supervised and unsupervised work with children in regulated activities. The Bill would restrict the definition of roles that fall under “regulated activity” and would mean that employers would not be required to do CRB checks for many employees working with, and in close proximity to, children.

Furthermore, employers would not be able to access information on whether that individual had been barred from working with children and vulnerable adults. I note the further safeguards that the Government have introduced following Committee, which amend the definition of “supervised” as specifically that which is reasonable for the protection of the children concerned. That is a step forward and clarifies that organisations and employers in regulated activity are under a statutory duty to provide adequate supervision for the safety of those children. However, without the ability to access information as to whether an individual had been barred from working with children, it is not clear how the Government expect organisations to discharge such a responsibility adequately. They appear, in effect, to be placing the burden of responsibility wholly on to organisations for the protection of children while denying them access to key information.

Perhaps more seriously, the Government’s proposed amendment to the definition of supervision fails to recognise the serious issue of secondary access, which has been raised by numerous children’s charities and voluntary organisations. Many cases of child abuse do not occur in a place of regulated activity such as a school or sports club but in other unregulated, unsupervised places, as a result of the trust they forge with both the child and the parent through their position of authority and as a result of the assumption that that individual has been adequately vetted by the organisation. The case of Barry Bennell demonstrates just how such relationships can develop over many years, outside the supervision of a regulated activity. That individual received a long jail sentence for the serial abuse of young boys over a period of years when he was a scout for north-west and midlands junior football teams. He gained secondary access to players through his position and invited the boys to stay with him at his home or took them on tours to various places where he sexually abused them.

Revising and re-revising the definition of supervision through guidelines and amendments is not enough and will not stop men like that from gaining the trust of children and their parents by working without any checks in close and sustained contact with children. I know the Government are determined to remove what they regard as unnecessary regulation, but regulation is often about protecting and safeguarding people—often vulnerable people—from the potentially careless, irresponsible or criminal acts of others. The Government should think hard about the words of the noble Lord, Lord Bichard, and the potential consequences of the exemption of supervised workers and volunteers, which means that not all those working in regular contact with children and vulnerable adults are regulated.

[Lord Harris of Haringey]

It is unfortunate that we are debating these amendments at this time of night in a fairly sparse Chamber. I fear that in a few years time people will look back on this debate and say, “Why did Parliament not do more? Why was Parliament so happy to allow those changes to go through without further checks and cautions?”. I am therefore grateful to the noble Lord, Lord Bichard, for his amendments. He is quite right to say that a balance has to be struck and that no system will necessarily protect all children against abuse and against predators. However, the omission that is being created by this Bill is enormous. It is saying that if a volunteer, or someone working with children, is subject to supervision, they do not have to be checked at all. The reality is that parents send their child to a school or a club because they assume that it is a safe place. They assume, therefore, that the people who will be in contact with their child at that school, that club or that activity are also safe. I suspect that unless they pore over the details of our debate, which I am sure is not the case, they will assume that all those people are being checked against these registers and lists. Of course they will not be. They are volunteers or they are under the day-to-day supervision that is envisaged.

--- Later in debate ---

[Lord Henley]

I am grateful to my noble friend for that correction. My noble friend Lady Stowell has just reminded me that there is a strong distinction between schools and FE colleges. For that reason I think it is very important. Oh, dear, I have to give way to the noble Lord, Lord Harris. Can he wait and let me finish my remarks? Calm down, as they say. I shall look very carefully at what I said. Obviously there is an important distinction between the two. I now give way to the noble Lord.

[Lord Harris of Haringey]

All I would ask is that when the noble Lord is looking very carefully to clarify that distinction he also looks at the situation of the large numbers of volunteer assistants in schools and volunteers used for out-of-school activities linked to the school—for example, to interest children in science, since we have been talking about technicians, but it could also be in art or other activities—to see whether they would be covered.

[Lord Henley]

Of course I will look at those matters and respond to my noble friends Lady Randerson and Lady Walmsley. I will even send a copy of that letter to the noble Lord, Lord Harris, in due course.

Let us return to the amendments because that is the important thing to do. I suspect this might now have to be the last amendment that we can deal with. In putting forward the amendment, the noble Lord has questioned whether we are confident that any supervision would be adequate to protect these children. In making the case for these amendments, reference has been made to the concept of secondary access. Some commentators imply a unique causal link between initial contact with the child and later contact elsewhere if the first is the place where most work is regulated activity. We do not accept that premise. Initial contact may happen where regulated activity takes place or it may happen in some other setting, such as a leisure centre, library, church or wherever. In our view, one type of setting does not offer significantly more help than any other for seeking contact with the same child later and elsewhere. Whatever the setting, we believe that parents have the primary responsibility for educating their child in how to react to an approach from any adult if it goes beyond that adult’s normal role. I give way to the noble Baroness.

--- Later in debate ---

[Lord Henley]

My Lords, on the contrary, it would be covered now, and following the changes that we are going to make it would still be covered. He was not covered by what was in place before and that is how he slipped through the net. That is why the noble Lord, Lord Bichard, was asked to set up his review into these matters and why the changes were made. The point that we are trying to make is that the changes have gone too far—this was the point also made by the noble and learned Baroness, Lady Butler-Sloss—in terms of the bureaucracy involved. As the noble Lord, Lord Bichard, put it, one can never totally eliminate risk and there has to be a degree of balance in how one deals with these matters. One must be proportionate. Merely to think that any number of checks imposed by the state is going to eliminate all risk is, I suspect, a wish too far. I give way to the noble Lord.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble Lord. He said a few moments ago that there is a responsibility for parents in this. The difficulty is that the normal assumption of parents will be that every person whom their child comes into contact with in a club or other activity is safe. So presumably what the noble Lord is saying is that, in the guidance that will explain what all this means, parents will be provided with a list. It will say, “The following people whom your child comes into contact with have been checked and the others on the list have not been checked. Please advise your children not to have any contact outside this activity”. That is the implication of what the Minister is saying. Of course parents have a responsibility, but what the Government are doing is creating a situation in which parents will think that an environment is safe, but it is not because some individuals will not have been checked and those individuals may build up a relationship of trust with a child that they could choose to abuse at secondary contact.

[Lord Henley]

The noble Lord may say what he wishes, but he should not try to put words into my mouth, which is what he is trying to do. He is trying to suggest that we could tell all parents exactly who is safe and who is unsafe. Obviously we cannot do that. What we are trying to do is create a system that will provide the necessary safeguards but does not make parents feel that their children are automatically safe. Parents must still have the duty of looking after their children by warning them of potential dangers. They should not assume that merely because someone has been CRB-checked, merely because the process has been gone through and merely because every box has been ticked, which is what the noble Lord seems to suggest, all is safe.

[Lord Harris of Haringey]

My Lords—

[Lord Henley]

I am not going to give way to the noble Lord. I am going to get on with my speech. If the noble Lord will allow me to do so, I will continue.

These amendments seek to preserve what we believe is a disproportionate disclosure and barring scheme that covers the employees and volunteers far more than is actually necessary on this occasion for safeguarding purposes. In so doing, it subjects all the businesses, organisations and whatever to unnecessary red tape and discourages volunteering. The noble Lord, Lord Bichard, also made the important point of whether it would still be open to schools, organisations and businesses to continue to check volunteers and others. Of course they can, and we will ensure that they are still able to request the enhanced CRB certificate when necessary. We want to emphasise the importance of good sense and judgment by the managers on the ground when they look at this issue. That is at the heart of our proposal and it is why we think we have got the balance right. The noble Lord, Lord Bichard, is now looking somewhat quizzical but no doubt we can have further discussion about this between now and another stage.

The right thing is to get the correct balance in how one looks at these things. The noble Lord asked about schools and what they could do. This gives local managers the ability to determine these things flexibly and make extra checks. With the various interruptions I have had, I appreciate the slight muddle I got into earlier over the letter to my noble friend Lady Walmsley. There has been a degree of confusion here.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Tuesday 31st January 2012 Lords Chamber

[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.

[Lord Harris of Haringey]

To clarify further, presumably part of the difficulty here is that this is an inadvertent error by the police, because they have taken somebody under Section 136 to a place of safety which in this instance has turned out to be a cell in a police station. Is not the real problem here, and the reason why, presumably, custody officers have then made this mistake, that there is an inadequate supply of places of safety in more appropriate accommodation? That is a fundamental issue. If the Government were to address that, the chance of this arising would become far less.

[Lord Henley]

If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.

I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.

I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,

“any other case,”—

in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,

“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.

We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.

I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.

--- Later in debate ---

[Lord Dear]

My Lords, I have a good deal of sympathy with the view that the noble Lord, Lord Hughes of Woodside, has just expressed; it is a view that one hears frequently when talking to, as it were, the man on the Clapham omnibus. I rise neither to support nor to oppose the amendment at this stage. I have not checked with ACPO to see whether it would prefer a lift from three years to six, but in a straw poll it would probably agree that six years would be a help. However, it is incumbent on me to point out that ACPO has already expressed the view that it is comfortable with three years, following the Scottish model, and the ability to go further.

I wait to hear what the Minister says, but the nub of this is the question of balance and proportionality. It is necessary to follow to a large extent the judgment in Marper, which we all remember and which started this debate in the first place. What the noble Lord, Lord Lester of Herne Hill, has said is very pertinent; I drift very much towards his point of view. Still, I would like to hear what the Minister says, particularly on the question of balance, proportionality and how that affects the Marper judgment.

[Lord Harris of Haringey]

My Lords, on the same point about the balance of proportionality, I am assuming that this clause is based on a detailed and careful analysis of the evidence, so perhaps the Minister could share with the House the numbers of people who are affected in terms of their DNA samples being removed and destroyed. Over the past few years, how many individuals whose DNA would now have been removed from the database would not have been brought before the court for offences that have either subsequently come to light or where their DNA has subsequently been matched? It is incumbent on the department to place this evidence before us. That would deal with the concerns raised by the Joint Committee on Human Rights.

If in fact there is no evidence and a judgment has simply been made that three years is better than for ever, but there is no reason why it should be three years instead of five, six, seven or two, that is not a sound basis for making an extremely important decision, not least for the sanity of the victims of serious crime where the perpetrator might otherwise be convicted. It is a very unwise position for this House to be making that judgment without an understanding of the evidence.

--- Later in debate ---

[Lord Henley]

My Lords, that provision will be available here; it is available there. That is the important point. The police will have the ability to apply to the courts. Those arrested for a qualifying offence but not charged, where the victim is vulnerable, will also have their DNA held for three years, subject to the approval of the new independent commissioner. The noble Lord may not like that but that is the case.

[Lord Harris of Haringey]

The Minister said that an application, which has not, or may not have been exercised in Scotland, could be made when the police consider it necessary. Could he define what he thinks would be necessary under such circumstances?

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Tuesday 6th December 2011 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, I support the noble Baroness in her amendment. It seems extraordinary that taxi companies are going to have to desist from requiring enhanced disclosures. I completely agree with her point that it is not just children and vulnerable adults at risk; many young women, especially when they have had a drink, are extremely vulnerable. I fully support the noble Baroness.

[Lord Harris of Haringey]

My Lords, I think that the noble Baroness, Lady Doocey, has put forward an extremely helpful amendment. The reason for thinking that is because, tragically, there have been too many instances when minicab drivers, and indeed licensed taxi drivers, have turned out to be a danger to those whom they ferry. Those instances are comparatively rare, and of course it is much safer to use a licensed vehicle than otherwise, but the danger remains.

My only regret is that the noble Baroness, in her normal ingenious way, has not found a way to encompass what I consider to be the increasingly dangerous fraternity of rickshaw drivers in London. I am sure that a few extra words would have enabled us to have a licensing regime for rickshaw drivers on top of all this, with the added protections of enhanced record checks. I appreciate that I have now caused a flurry on the Front Bench while the correct answer as to why that is incredibly difficult is explained to the Minister. However, as I think that the noble Baroness, Lady Hamwee, is about to speak, I am sure that he will have a chance to mug up on the subject.

[Baroness Hamwee]

My Lords, perhaps I will give the Minister thinking time, but I was going to say that rickshaw drivers present more dangers than those which are the subject of this Bill—the noble Lord has referred to the small number of very horrific examples.

I support my noble friend. There have been important steps in licensing over the past few years, certainly in London, but legislation cannot remove every risk. A perpetrator may not previously have been caught or may just be starting on a course of action. However, the more tools that are given to employers and to the organisers of different activities, the better—within the overall objective of a sensible regime that is not overbureaucratised.

Perhaps I might make one comment, which I wondered whether I should come in with in a previous discussion when I think the Minister was accused of being unimaginative about the amendments. I can tell the Committee that at the meeting which I attended with the various sporting groups, which has been referred to, both our Minister and Lynne Featherstone made it absolutely clear that an employer or an organiser cannot abdicate responsibility to an unthinking bureaucratic process. I, for one, was very impressed at that meeting by the common-sense attitude being displayed. We were being reminded that we cannot do everything through legislation. We will do as much as we can, but we cannot do everything.

[Lord Henley]

My Lords, such is the benign nature of my speaking note—I am not even sure that “Resist” appears on it, as sometimes is the case—that I thought I might be able to get through the whole of this debate without an intervention from the noble Lord, Lord Harris. This was going to be a little test to see whether I could manage that. Unfortunately, he then mentioned rickshaw drivers and associated problems. I had a quick word with my noble friend Lord Attlee, who assures me that this matter was hotly debated during the Localism Bill. I am sorry that I was not there for that, but I will remember the occasion and make a point of looking up those debates. I have a picture in my mind of the noble Lord, Lord Harris, setting off home this evening to Haringey with the long-suffering rickshaw driver.

[Lord Harris of Haringey]

I value my life too much.

UK Border Security: 30 November

Lord Harris of Haringey Excerpts

Monday 28th November 2011 Lords Chamber

[Lord Henley]

My Lords, as I made clear in my original Answer, our first priority, our highest priority, our top priority is the security of the United Kingdom. If the noble Lord thinks that we are involved in strike breaking he should think again. We want to make sure that our borders are kept secure. We think that the unions are endangering that security by the actions they are taking. The offer is still open to talk to the Government and others and we wish they would take that up.

[Lord Harris of Haringey]

My Lords, of course our borders should be kept secure, but are the Government doing enough to negotiate with the unions on this point? Are the Government in fact making every effort to try to resolve this dispute rather than, as the Minister has told us, having been preparing since April for just this eventuality? Is it not that they actually wanted to provoke a strike, for whatever political reasons they may have?

[Lord Henley]

Come on, my Lords. The noble Lord knows perfectly well that the Government’s doors remain open and that the Government are prepared to negotiate. It is the unions who are being intransigent and it is the party opposite which is refusing to condemn an action that will possibly endanger our security. Because of the actions we have taken, and have been taking since April of this year, we think that we will be able to keep security at the appropriate level at the borders on Wednesday.