Phone Hacking
Lord Henley Excerpts(12 years, 4 months ago)
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Lord Fowler
To ask Her Majesty’s Government what is the latest police estimate of the number of individuals whose phones have been hacked by newspapers, and how many arrests have been made.
The Minister of State, Home Office (Lord Henley)
My Lords, the latest estimates by the Metropolitan Police Service indicate that there may be about 800 likely victims of phone hacking. There have been 17 arrests as a result of the continuing police investigation.
Lord Fowler
My Lords, we obviously do not know how many people will be charged, but we do now have a very good picture of how widespread phone hacking was. Is it not clear that the phone hackers and those who employed them believed that their power put them above the law? Given that, is not one of the lessons of this whole scandal that we should never again allow one proprietor or one company to own a disproportionate amount of the British media?
Lord Henley
My Lords, I am not going to comment on the last point made by my noble friend, but no doubt the House and others will have listened to that. The police have spoken to about 1,800 people, of whom, as I said, 800 are likely victims. Whether charges will result from those 17 arrests is something on which I cannot comment.
Lord Prescott
My Lords, is the Minister aware that the appalling level of these arrests and prosecutions reflects badly on the British press and was made possible only by the use of no-win no-cost litigation by those who were complainants, including me. Why are this Government in their legislation on legal aid quite prepared to meet the unanimous demands of the press that we reduce their costs in such situations and yet increase the costs of individual complainants and reduce their access to no-win no-cost litigation? Can he assure the House that those he has mentioned as having been arrested, including the Prime Minister’s former adviser, Mr Coulson, played no part in changing the policy of the previous Government, who rejected the request from the media?
Lord Henley
My Lords, I can agree with the noble Lord that this has not been the finest moment for the British press. His remarks about no win no fee go wider than the Question on the Order Paper, but that is a matter that we will obviously have to take into account. On the broader issue of phone hacking, phone hacking is obviously illegal, but we must await the outcome of the Leveson inquiry before we make any final decisions in this matter.
Lord Tebbit
My Lords, would it not be in the public interest for the press to publish, however they gained knowledge of it, activities by a Minister, in his working time and in his office, which were quite clearly contrary to all standards of decency and the Government’s own code of conduct for Ministers?
Lord Henley
My Lords, what the press publish is a matter for the press and not for us, but I note what my noble friend has to say about the activities of some people in the past. I repeat that we feel that we should wait until the inquiry being conducted by Lord Justice Leveson has been concluded.
Baroness Bonham-Carter of Yarnbury
Does the Minister agree with the editor of Private Eye, who said at the Leveson inquiry yesterday that we do not need new laws to govern the press, that phone hacking, paying the police for evidence and being in contempt of court contravene existing laws, and that we need proper and vigorous enforcement of them?
Lord Henley
My noble friend makes a very good point. All the matters she referred to are against the law, and we should always be very loath to pass new laws purely because we see a problem happening when there are existing laws that serve that purpose very well. The important matter is to make sure there is proper enforcement.
Lord Davies of Oldham
My Lords, why was the Minister so reluctant to comment on that part of the question asked by his noble friend Lord Fowler about concentration of press ownership? I thought the Minister belonged to a Government who were showing some concern about the wilder excesses of capitalism. Is not excessive concentration of press ownership a clear illustration of that?
Lord Henley
My Lords, I think some of the concentration of press ownership happened during the Government of whom the noble Lord was such a distinguished member in former years. I do not think it would be appropriate, as I said, to comment in advance of the inquiry that will be concluded in due course, in his time, by Lord Justice Leveson.
Lord Elystan-Morgan
My Lords, can the Minister tell the House, in general terms, whether systems of state security dedicated to the surveillance of communications worldwide can cast any light at all on the question of phone hacking? If that is the case, subject to proper safeguards, can such information can be relayed to the Leveson inquiry?
Lord Henley
My Lords, I am not sure I can assist the noble Lord on that latter point. I can say that my understanding is that it is relatively easy to hack into texts and voicemails on individuals’ mobiles but very difficult to get into live calls on a mobile, which is something that only possibly the security services and others would be able to do. These things are possible but are much harder. In the main, we are talking about hacking into texts and voicemails.
Lord Brooke of Alverthorpe
Perhaps the noble Lord can help me in my ignorance. Can he say whether the Leveson inquiry’s terms of remit cover the subject that was raised by the noble Lord, Lord Fowler, about the concentration of media ownership? If not, can he say what the Government will do about it?
Lord Henley
My Lords, the terms of reference for Lord Justice Leveson were set very wide indeed and it will be for Lord Justice Leveson to produce his report in due course. The timing of that report is obviously a matter for Lord Justice Leveson.
Lord Inglewood
Does my noble friend the Minister know whether the inquiries that the police made before the arrests that he described in response to my noble friend Lord Fowler’s Question have been completed? If not, is there an anticipated timetable for completion?
Lord Henley
Operation Weeting, which is one of the police investigations into the matter, is ongoing. As I made clear, there have been 17 arrests so far. There might be more in due course.
Lord Hamilton of Epsom
Is my noble friend not concerned that the source of these telephone numbers in the beginning may have been the police themselves, who sold the numbers to the press?
Lord Henley
My Lords, that obviously is a concern and is one of the matters that was considered in the report from Dame Elizabeth Filkin, which was published on 4 January this year. We expect the police service as a whole to study the recommendations of that report, and various other reports including that from HMIC, and draw the appropriate conclusions.
The Lord Bishop of Chichester
My Lords, I appreciate that the question about the implications of the present Bill on legal aid was not in the original Question asked by the noble Lord, Lord Fowler, but it seems a reasonable extension of it. Although I would not want to politicise the thing in the way that the noble Lord, Lord Prescott, did, it does seem there is a question about disproportionate power. It is not so much about the concentration of the power of capitalism as the concentration of power against the relative powerlessness of the individual. That does seem to be a legitimate extension of this and I would be grateful if the Minister could reflect on that.
Lord Henley
My Lords, I did not think that the noble Lord, Lord Prescott, politicised this question unnecessarily and, similarly, I do not think that the right reverend Prelate has politicised it. However, I do think that does go beyond the Question on the Order Paper.
Protection of Freedoms Bill
Lord Henley Excerpts(12 years, 4 months ago)
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Baroness Sharp of Guildford
My Lords, I, too, rise briefly to support the amendments in the name of the noble Baroness, Lady O’Neill of Bengarve. My experience now is somewhat dated, but back in the early 1990s I was responsible for supervising a group of researchers putting together a substantial database on bibliometrics. The difficulties of cleaning up such a database are extreme and costly. The group of four young researchers I was supervising worked for two or three years in just cleaning up the database. One issue that we were looking at then was the advantage of concentrating research into large laboratories rather than having a lot of smaller researchers. You cannot do such research until you have cleaned up the database. Someone coming in and using your data is clearly something that we need to protect against. We also need to make sure that the costs involved in putting databases together are fully met.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by saying that I am very grateful to the noble Baroness, Lady O’Neill, for her opening remarks when she talked about discussions that have already taken place. I understand her concerns. I understand them now possibly in spades as I look at the serried ranks of academe facing me. I ought to make it clear that further discussions will have to take place between now and Report as there are real concerns in the academic and research community. The noble Baroness, Lady Warwick, reiterated concern about costs and her noble friend Lady Blackstone referred to burdens on academe. Concern was expressed about safety, particularly for those involved in research relating to animals. I can well understand that, having had some responsibility for that issue when I was a Minister in Defra.
I shall try to explain our intention behind Clause 100 and what we initially think of the amendments. I should make it clear that I am more than happy to have another meeting with the noble Baroness and any others who wish to come along, as we want to ensure that we get this right and can meet those concerns. I shall say a few words about the background to Clause 100, particularly as this is the first amendment in the group. I shall not go on at this stage to Amendment 151, to which the noble Baroness referred, as I had better do that when it is moved in its proper place.
Clause 100 gives effect to the Government’s commitment to provide greater transparency and create, in particular, a new right to data so that government-held data sets can be requested, used by the public and published regularly. We believe that that will help the public and organisations to hold the Government to account. It will redirect and shape public services to reduce the deficit and deliver better value for money in public service spending. It will realise significant economic benefits by enabling individuals, businesses and not-for-profit organisations to build innovative applications using that public data.
The Freedom of Information Act 2000 currently provides for the release or publication of the recorded information held by public authorities covered by the Act but makes no provision for reuse at the point of publication or release. It requires only the provision of access to the information and only upon request, which means that repeat requests have to be made over a period of time to gain sets of information or data. There is no obligation for public authorities to provide such data in an electronic format that promotes reuse—for example, machine-readable or open, standard format. I note the comments of my noble friend Lord Lucas about his trials and tribulations with the university sector, particularly with its use of PDF, which causes him problems.
These changes to the Freedom of Information Act, as set out in Clause 100, are intended to promote the proactive release of more data sets and to ensure that when data are released they are in a reusable format and, where possible, free for reuse. This will, in turn, promote the use and development of the raw data held by public authorities to provide useful products and services.
Additionally, the Government announced their intention to ask Parliament to undertake post-legislative scrutiny to see how well the Act is working in practice and whether there are any further changes to be made. In advance of this, the Government must act on their commitment to transparency and open data to release the benefits of open data to the public as soon as possible. There will be further post-legislative scrutiny to see how well that Act is working, and we will come to that in due course. When we have that, we can respond.
I turn now to the amendments in this group and will deal with them, but I repeat the commitment I made at the beginning that I am more than happy to discuss these in greater detail afterwards with whoever the noble Baroness wishes to bring along. Amendment 147A seeks to add the word “complete” to the definition of data sets allowed to be requested. However, I believe that the use of the word “complete” would not improve the definition of data set and could introduce a degree of uncertainty and confusion around the operation of this provision. For example, data sets may be continuously updated depending on the publication scheme set out by a public authority, and one could argue that a particular data set is never complete per se. The Government do not wish to be overprescriptive on this matter and defer judgment to the public authority to decide when its data are ready to be published in the interests of all parties.
I appreciate that the noble Baroness raised concerns at Second Reading in respect of these provisions, and we have exchanged correspondence and had meetings in response to her concerns about the potential impact on the higher education research community, which has argued that some of its data would be releasable in transient form until final publication. I reassure the Committee that Clause 100 as it stands does not alter the status quo in relation to the release of information in draft or of incomplete status, and such information is already adequately protected by existing exemptions under the Freedom of Information Act. Furthermore, the Information Commissioner’s office has produced specific guidance for higher education institutions by recommending those institutions to have a robust information management regime that will tackle issues about disclosure of data that is incomplete or in a draft form.
Similarly, Amendment 147B, which amends new Section 11(1A) of the Freedom of Information Act, is unnecessary as the provision already covers the circumstances that the amendment seeks to specify. The duty to provide a data set to the applicant in a reusable format, as currently drafted, adequately covers the effect of a public authority undertaking to provide the data set as requested in a reusable format. We consider that Clause 100 and the Freedom of Information Act as a whole already make adequate provisions for charging and that the noble Baroness’s Amendment 148A is not appropriate or necessary. Further, the Government will be providing guidance in the revised Section 45 code of practice on reusable formats and on when it will be considered reasonably practicable for a public authority to convert a data set into a reusable format for release, so that it will be clear what should be expected for both the data holder and the requester. The costs for releasing a data set in a reusable format falls to the public authority, as does releasing other information under the Freedom of Information Act, and the same freedom of information provisions apply here in terms of releasing that information.
With regards to the noble Baroness’s Amendments 148C and 148E, which seek to amend the definition of a data set, we consider that the current definition provided for in Clause 100 is fit for purpose. We do not believe that it would be sensible to introduce further limbs into the definition of a data set as, inevitably, the addition of any new terms, such as “data integrity and security”, could raise as many questions as to their meaning as the terms which they are intended to clarify. We believe that it is preferable to address such matters through the supplementary guidance for public authorities, which will be provided in the revised Section 45 code of practice.
As regards Amendment 148, in the name of my noble friend, I take a similar view. It seeks to define what is meant by the term “capable of reuse”. Again, we believe the appropriate place for any necessary clarification of the terminology used in the clause, and of the reusable formats to be adopted, is in the revised code of practice, which will be produced under Section 45 of the Freedom of Information Act.
We will be revising the statutory code of practice to provide greater clarity on certain aspects of these provisions. Among other things, the revised code will provide guidance on what constitutes a reusable format and sets out those factors that a public authority should take into account when deciding whether it is appropriate to include a data set in a publication scheme. We will also issue administrative guidance to central government on best practice.
On my noble friend’s Amendments 149 and 150, it is important that the changes we are making preserve existing regimes, specifically when it comes to charging for reuse of copyright material. Currently, public sector bodies under the Re-use of Public Sector Information Regulations may charge on a reasonable return of investment basis, and the policy is to maintain the status quo. Maintaining this right continues to allow public authorities the flexibility to charge should they wish and, where justified, in accordance with the Treasury’s guidance, Managing Public Money, which we all take enormously seriously.
We would expect, as now, most data sets to be provided free of charge for reuse but it is right that public authorities should, in appropriate cases, be able to charge. Any such charges would normally be set at the level necessary to recover costs, and no more, but fees can be set at a level to provide for a reasonable return on that investment. This would be appropriate in circumstances where the public sector has followed the Treasury’s guidance, Managing Public Money, and its accounting principles, and has taken into account the value of that data set and the costs incurred in resourcing the collection of the data.
With regards to my noble friend’s Amendments 148B and 148D, I would respectfully recall the reasoning behind the clause whereby the intention is to create a new right to data through the request for data sets for reuse and, where reasonably practicable, in a reusable format. The extension as proposed in my noble friend’s amendments goes beyond the realm of data sets and therefore is not appropriate in this instance but may be considered, again, as part of the post-legislative scrutiny that we are offering on the Freedom of Information Act which is currently under way.
Baroness Royall of Blaisdon
My Lords, I rise to support the amendments in the names of the noble Baronesses.
Amendment 151 provides both clarity and the appropriate safeguards for the UK’s research centres and its academics. Like other noble Lords, I wonder why the Minister has decided to go down a different route from that being trodden in Scotland, Ireland and the USA. It seems to me that by taking a different route we are putting our universities at a competitive disadvantage. That would obviously be a retrograde step.
It is clear from everything that has been said by noble Lords, who are far more well versed in these issues than I am, that the guidance provided by the Information Commissioner is completely inadequate in relation to competition and confidentiality. The noble and learned Lord, Lord Scott of Foscote, has commented that the amendment is probably defective. However, unless the Minister is prepared to accept the principle behind it, the contribution which our academic and research institutions make not just to the cultural and intellectual life of this country but to ensuring that we have a competitive advantage in many areas will be adversely affected. Therefore, I urge the Minister to accept the amendment in principle.
Lord Henley
My Lords, I start by saying that whatever arguments I put forward will not be based on those of the drafting point made by the noble and learned Lord, Lord Scott. However, I take his point that new section (1A)(a)(i) and (ii) are possibly unnecessary as they seem to include everyone. It would therefore be possible to delete the words from “by” onwards and just talk about what is published.
I make it clear to the noble Baroness, Lady Blackstone, and others that the Scottish, Irish and United States legislation have not been my bedside reading for some time. I am not completely and utterly familiar with them but I will no doubt make sure that I am made totally familiar with them and look at the consequences of what they do. An important point to remember in all the arguments put to me is the remark of the noble Baroness, Lady Warwick, that, if it does no harm, the amendment ought to be accepted. I am not sure that one should accept amendments merely because they do no harm. I want to make it clear that we are committed to transparency in this area. We will not introduce new exemptions from disclosure unless the necessity of doing so has been clearly demonstrated.
I recognise that a number of noble Lords have expressed considerable concern. We have devoted almost three-quarters of an hour to this matter. I commend my noble friend Lady Brinton for the admirable brevity with which she set out her case and expressed her concerns. I am aware that there are major concerns in the whole sector about the potential for the disclosure of information under the FOI Act which could undermine the United Kingdom’s academic research. We all accept that the UK is at the very forefront of international research and that it is vital that that position should be maintained. We wish to do that. I am more than happy to see noble Lords between now and Report if they want to make the case for needing to go further and to explain why they believe that the existing exemptions, properly applied, do not provide the appropriate protection.
I am aware that only in January of last year the Science and Technology Committee recommended in its report in relation to events at the University of East Anglia’s climate research unit that the application of the Freedom of Information Act to research material required clarification. There is in fact little evidence to demonstrate that existing provisions within the Freedom of Information Act do not provide adequate protection for research-related information. The circumstances provided for in this amendment are already provided for in existing exemptions. For example, exemptions exist which may be used, subject to a public interest test, to protect information the disclosure of which would at least be likely to prejudice commercial interests, health and safety, and the effective conduct of public affairs, as well as information intended for future publication. There is a clear public interest in protecting research information from disclosure in appropriate circumstances, and the Act passed by the previous Government—and I do not know why the Opposition now wish to amend it when there is no evidence that it needs amendment—is designed to ensure that public interest factors are given proper weight when exemptions are applied. Furthermore, the Act contains provisions protecting information provided in confidence and in relation to personal data.
Any new exemption within the Freedom of Information Act would also have no relevance to research on environmental matters. Requests for environmental information are considered not under the Freedom of Information Act but under the Environmental Information Regulations, and this amendment would not affect those. All information held by the higher education sector, including that relating to research programmes, has been subject to the Freedom of Information Act for seven years. The noble Baroness will remember, as she was probably a member of the Government at the time when it was passed in 2000 and came into effect in 2005. The Freedom of Information provisions within the Bill, in Clauses 100 to 102, build on a regime that is already firmly in place. I know that my noble friend Lady Brinton will be aware that the Information Commissioner has recently issued guidance for the higher education sector in response to the Science and Technology Committee’s recommendations. This is one reason why it is possible that it will not be necessary for me to study the provisions of the Scottish Act, as well as what they are doing in Ireland and America. The guidance will assist higher education establishments in dealing appropriately with requests for research-related information, and withholding it when it would not be in the public interest to disclose.
As a coalition Government, we are committed to greater transparency. I want to make it clear that we will not introduce exemptions into the Freedom of Information Act unless we can have that clearly demonstrated. I do not believe that it has been clearly demonstrated, but I am more than happy to see my noble friend and others if she feels that she can put a further case. I repeat to the noble Baroness, Lady Blackstone, and others, that I will study what is happening in Scotland—it is near to my heart. But what goes on in a devolved Administration does not necessarily have to be copied in this country. There are times when we can learn from them and times when we find that what they are doing is not necessarily appropriate. I am more than happy to look at it, but I do not think that a case has been made on this occasion. But my door is always open and I am always prepared to see my noble friend and others to discuss this matter, if they feel that I have not got the message appropriately.
Baroness Brinton
I thank the Minister for his comments and for his offer of a meeting, which I think myself and others will be very grateful to accept. I start by saying that in addition to the comments that I made, the comments from everybody else who spoke started to provide the evidence that the Minister was looking for in showing how there are problems with the current arrangements. In defence of the Information Commissioner, can I say to the noble Baroness, Lady Royall, that I have no issue with his guidance, which is based on the FOI Act? One of the key points that I was trying to make was that the FOI Act did not envisage the complexities of university research, which is where the issues have arisen. I know that the UUK briefing, which the Minister mentioned that he had just received, will provide some evidence, and I am sure that UUK and RCUK would be delighted to provide more information on specific cases for the Minister to look at.
I want to pick up the point raised by the noble and learned Lord, Lord Scott, about paragraphs (a)(i) and (a)(ii) of the proposed subsection (1A) of the amendment. As I understand it—and I may be wrong—the key point about the Freedom of Information Act is that the only authorities affected by it are public authorities. That is why it is so specific. Thereafter it refers to individuals because there are individuals who work within those authorities. I would be delighted to be proved wrong but that is the basis on which I understand it. If others with more expertise in drafting want to correct that I would be delighted to concede that point.
We have taken some considerable time on this amendment and the only point I want to consider before we finish is to say that the evidence is clearly there. It is also evident from Scotland, the USA and Ireland that these arrangements are working and working well and I hope the Minister will be able to satisfy himself on those accounts. The key point I want to keep returning to is a very selfish one about the commercial viability of English and Welsh universities. They are now on the back foot compared with Scottish universities. I believe that that is inappropriate. We believe very strongly across the House that we want our universities to be able to succeed in the commercial market that is academic research today. Providing a clearer framework for academics through this clause would do that. It would not endanger transparency and access to freedom of information for people who genuinely need it. This is purely protecting a number of areas where there is a complete muddle at the moment that is beginning to affect how our universities can work effectively in the research market. On that basis, and thanking the Minister for his offer of a meeting, I beg leave to withdraw my amendment.
Lord Henley
My Lords, I welcome the noble Baroness to this Bill. When I saw she was going to be moving this amendment I wondered whether I should have asked my noble friend Lord Howe to step in and deal with it, but I think he has quite enough on his plate at the moment. As the noble Baroness made quite clear, she does not want me to deal with this from the point of view of the Department of Health. She accepts it has every right to appeal the issue and that the Government can appeal it further through all the appropriate courts. Although this is a matter for the Department of Health, it obviously has implications for wider government. Therefore it is of concern and they have the right to appeal these matters.
As she asked me to do, I will confine my remarks—particularly when I get on to Amendment 151F, the second of her two amendments—to the broad principles, because that is what she wants me to address on this occasion. No doubt she has had and will find ways of debating these matters further, and at some length, when she continues the debates on the health Bill. I want to deal first, rather briefly, with Amendment 151E, which proposes that where a response to a freedom of information request is not issued within 20 working days the applicant must be given the option of requesting any updated or new information,
“unless there are grounds for significant new concerns as to the exempt nature”
of such material. I want then to deal with the broad principles relating to Amendment 151F, concerning,
“Appeals against information notices by public authorities”,
and why we do not accept that her amendment is an appropriate way of dealing with this.
First, with regard to Amendment 151E, I accept that we would certainly want to encourage all public authorities to provide the most up-to-date information in such circumstances where it is appropriate and reasonable to do so, but the proposal we have here is fraught with difficulties. It could make it very difficult to conclude a request taking more than 20 working days, even where the deadline has been extended for legitimate reasons, given that new information might continuously be produced and the existing information would be continuously updated. That could have real disadvantages for the requester of that information if previous versions of the information that they might be interested in seeing were not ultimately disclosed because the obligation to disclose those versions had been superseded by an updated request.
Further, the effect of the option to request updated information being exercised will be to create in effect a rolling request for information each time the 20-day limit is exceeded. That might delay the information originally requested from reaching the requester, and will mean that the public authority expends time answering one version of the question only to see that work disregarded if it is superseded by an updated request. Neither of those are sensible results. I also believe that the amendment could lead to the undesirable outcome where public authorities rush decisions to complete cases within 20 working days, even where there are legitimate grounds to take longer. Therefore they either withhold uncontentious information or release sensitive information inappropriately.
I turn now to the second of the amendments—
Baroness Thornton
I would be grateful if the Minister could address the issue. The register of risk is a very good example of this. Were my honourable friend and the Evening Standard to have succeeded ultimately and were the Government to have acceded to the Information Commissioner’s ruling to release the information, the register of risks of November 2010 would not have been the relevant document. It was mentioned that it would not be very much use to my honourable friend because it would be that of November 2010, not November 2011. There is a genuine issue here which I would be very grateful if the Minister could address.
Lord Henley
I do not really see how it applies in the particular case that the noble Baroness is referring to, when she is talking about a 20-day limit and, if that is exceeded, how it would affect the November 2010 or November 2011 health risk register.
I shall come on to what I think is the more important part—
Baroness Thornton
I am very sorry to press the Minister on this matter, but I think I have been completely clear about this. I explained that a register of risks is a living document. It is a traffic-light process of red, amber and green in terms of the risks in any given policy area. The Minister must be very familiar with it because all government departments use them. A register of risks published in November 2010 would not be relevant in November 2011 when we in the House of Lords were discussing the health Bill.
I am perfectly happy to accept that this may be an incompetently worded amendment, but the Minister has not answered the question. Are the Government saying that when, under freedom of information, people ask for information that is then outside the 20 days and it goes to appeal, and the Government lose that appeal and the information may therefore be a year old, the Government will ensure that the up-to-date information is made available, if that is relevant?
Lord Henley
Obviously we want to provide the most up-to-date information that is appropriate. If this goes to appeal and it is found that we should be providing this information, we would provide that November 2010 information, but it would then be open to the noble Baroness to put in a request for the later information. Having had that decision by the tribunal, the court or whatever, that information would then be provided in the appropriate manner, because we would have lost that case and it would have become clear that that sort of information was that which should be provided.
Baroness Thornton
For the record, if the Government lose this appeal and publish this register of risks on this Bill, it will be not the November 2010 register of risks but the November 2010 risks plus the up-to-date version. Is that what the Minister is saying to me?
Lord Henley
I am not going to give an absolute guarantee of that sort without proper notice at this stage. However, I would have thought that it is fairly obvious that if something has been through the courts or the tribunal, or at whatever stage the Government decide that they are not going to appeal any further, and the courts have decreed that that sort of information ought to be available, it would be proper to provide the later information because it would be the same information that was being requested, other than the fact that it was at a later time. It would still be the same request being made, and it would have been decreed that that was appropriate. We would be bound by that decision.
Perhaps I might move on to the noble Baroness’s second amendment, with which I have even greater problems. In Amendment 151F, she proposes that no Bill may be submitted for Royal Assent where information directly relevant to that Bill has been requested under the Freedom of Information Act and where an appeal against an information notice issued by the Information Commissioner in the course of an investigation into the handling of the request is under consideration.
Baroness Thornton
I am sorry to interrupt the Minister again but did I understand him to say that it was disproportionate to delay the passage of a Bill? But what if the information is relevant to the passage of the Bill? This is the problem we have now. I am sure the noble Lord intends to enlighten me on that point.
Lord Henley
Yes, I think it is disproportionate to use the FOI process to delay the passage of a Bill and I do not draw back from those remarks— particularly when the appeal is under way for entirely legitimate reasons, as my colleagues in the Department of Health have made clear.
Perhaps I may go on, if the noble Baroness will let me. It also brings a political dimension into the process. The commissioner, who again I stress is independent of government, would obviously have to be mindful of the likely impact on the passage of a Bill were he to issue an information or decision notice during the passage of related legislation that he might expect to be appealed. Given that a decision on whether and when to issue a notice might indirectly impact on the passage of legislation, there is a real risk that his actions could be viewed through a political prism. That is not what we want and would have an adverse effect on his ability to act in a way that is—and is seen to be—both proper and impartial.
Baroness Thornton
Is the noble Lord saying that the ruling of the Information Commissioner—and the words he used, which I quoted to the Committee earlier in my remarks—was political in some way?
Lord Henley
I have not said that at all. I have said that what the noble Baroness is saying in her amendment would bring in a political dimension because it could cause delay to the passage of that Bill.
Obviously that risk could be avoided by the commissioner simply refusing to issue a notice while any Bill that he thought was related to the request was passing through Parliament. However, that would then cause even greater delay in him deciding whether or not to issue the notice, with an obvious disadvantage to the parties involved, particularly to the person who has requested the information. In either case, this would be to the potential detriment of the effective operation of the Freedom of Information Act and to the perception of the commissioner’s independence.
Baroness Thornton
This is really very important. Is the Minister saying, suggesting or even inferring that the use of freedom of information by Members of Parliament—and I have put the odd one in myself, and been a victim of it, from time to time—is not appropriate during the passage of any legislation, because a Member of Parliament may want that information to assist them in their deliberations or their input into that scrutiny?
Lord Henley
I regret to say that the noble Baroness is now getting to the stage where she is deliberately trying to misunderstand me on every occasion. There is no desire to stop people putting in a request for freedom of information. All we are saying is that her amendment, which in effect delays the passage of the Bill while that process is going on, is not an appropriate way in which to deal with it, and brings in the political dimension to the Bill. The amendment also undermines the premise that the Freedom of Information Act is motive blind by introducing a requirement to consider whether information has been requested in connection with a particular Bill.
Lord Scott of Foscote
Can the Minister help me or the Committee in indicating whether law officers have given any advice on the implications of this amendment from a constitutional point of view? I have in mind the prospect of a Bill being introduced in one or other House—it does not matter which—being passed in that House and going to the other House and being passed in that House too, perhaps with a commencement date specified in the Bill. All that would be needed to become part of the law of the land would be Royal Assent. If the result of the proposed amendment becoming embodied in the statute is to bar the presentation of the Bill, passed through both Houses, prevent it from receiving Royal Assent and becoming law of the land according to its tenor and the will of Parliament, it would be a very strange constitutional state of affairs. It would mean that the previous Act would fetter the ability of the current Parliament to pass and bring into effect its own Bills. Does the Minister think that this is the sort of point on which a constitutional opinion from the law officers would be necessary?
Lord Henley
My Lords, as I am sure that the noble and learned Lord will be aware, we never comment on the advice that we might or might not have received from the law officers, and I am not prepared to comment on this occasion. However, I join the noble and learned Lord in speculating on the very odd constitutional effects that an amendment such as this could have on the passage of legislation. It cannot be right that by submitting an appeal an outside party can restrict the passage of legislation. That is the crucial point in relation to this amendment. I will give way to the noble Lord, Lord Wills, in a moment if he can just keep calm. It would restrict the passage of legislation in Parliament and in effect govern how this place or another place does its business.
Lord Wills
I am perfectly calm, but I am very interested in following this debate, which has been fascinating. I understand the point that the Minister is making. The noble and learned Lord has raised an important constitutional question. However, could the Minister seek to find a way to reassure those of us who are worried about the other side of the argument? I am not making any comment on this particular Bill but, in the event that the suspicion arises that information is being deliberately withheld by the Government in an attempt to prevent proper scrutiny of a controversial Bill, which then goes through without that information being available—particularly to this House, whose particular role is to scrutinise on the basis of expert opinion and all the rest of it—what reassurance can he provide that this Bill and the processes of the Freedom of Information Act will not be used by the Government of any party to subvert proper scrutiny?
Lord Henley
I can give the assurance that the coalition Government have given again and again of our desire for genuine transparency. That is why we were committed to making the Freedom of Information Act work as well as it can, which is why we have brought forward amendments to the Act in this Bill. I can go no further than that in trying to reassure the noble Lord. There is a genuine commitment by this Government, and I do not believe that any Ministers would wish to subvert our processes by deliberately withholding information as the noble Lord seems to suggest. He will just have to take my word for it.
The noble and learned Lord put it best. It would be a novel and dangerous proposition and one that I cannot believe is in the best interests of Parliament that some outside party could restrict the passage of legislation through Parliament and in effect govern how Parliament does its business by putting in requests of this sort and causing delays. Therefore, I hope that the noble Baroness at this stage will not press the amendment—well, she cannot do so because we are in the Moses Room. I hope that she is content to withdraw the amendment, but I also hope that she has further discussions with my noble friend Lord Howe. No doubt they will keep those discussions to the Health Bill as it proceeds through this House.
Baroness Thornton
I cannot guarantee the last bit from the Minister—that this issue is over for this Committee or for the progress of this Bill. This is a matter of constitutional importance to this House and an issue between the Government and Parliament. The Government had a choice. When the Information Commissioner ruled that this information on the register of risks was relevant to the passage of this Bill, he made a very important constitutional point. By denying the House that information, the Government are asking the House of Lords to consider a Bill without the information that it needs to do so. We are not saying that any third party should seek to stop the passage of any legislation—and I am perfectly happy to take advice and redraft the amendment. But the Minister has completely failed to address the constitutional point that it raised here, which is not about the Health and Social Care Bill but about what happens if an Information Commissioner says that some information is relevant to the passage of legislation through this House and any Government deny it to the House. That is a very serious matter indeed. Of course, I will withdraw the amendment, but I do not think that the matter ends here or that it is limited to the Health and Social Care Bill.
Lord Henley
My Lords, I am sure that my noble friend is right when she says that it is better always to ask the question rather than, as she put it, to take the risk. As I understand it, the amendment proposes to extend the scope of Section 6 of the Freedom of Information Act beyond the extension already proposed in the Bill. However, the amendment seeks to do so in a way that I think is at odds with the approach taken in the Act.
At present, Section 6 of the FOI Act brings within the scope of the Act only companies that are wholly owned by the Crown or any single public authority listed, with limited exceptions, in Schedule 1 to the Act. Companies that are wholly owned by more than one public authority, or by the Crown and one or more of those Schedule 1 public authorities, are not currently subject to the Freedom of Information Act. Clause 101 therefore amends Section 6 of the FOI Act to widen the definition of a “publicly-owned company”, with the effect of extending the Act to companies wholly owned by the wider public sector. This simply means that any combination of public authorities subject to the Act, with limited exceptions, or by one or more of those bodies and the Crown, will be brought within its scope.
I mentioned that there are limited exceptions to this change. In one such instance, where a company is owned in part or wholly by a body that is itself subject to the Freedom of Information Act in respect of only some—and not all—of the information that it holds, the company will not be covered. It is this exception that my noble friend proposes to remove, so that such companies are subject to the Act.
I appreciate the intentions behind my noble friend’s proposal. Although relatively few public authorities are subject to the FOI Act only in respect of some information, and the number of companies excluded through the current proposal is likely to be small, the case for adding such bodies may well often be strong. However, I do not consider blanket coverage for these companies in the way proposed to be the most appropriate solution. As their parent body does not exercise wholly public functions—hence their partial coverage by the Act—it follows that some of these companies will also perform functions that should not automatically be subject to the Act.
That is not to say that it will never be appropriate for such bodies to be subject to the Act. Indeed, that may well be the case where any company of this sort exercises, for example, functions of a public nature. However, in such cases other means exist, and are already being used by the Government, to extend the scope of the Freedom of Information Act. These include secondary legislation under Section 5 of the Act to include bodies performing functions of a public nature. It would be more desirable to consider adding companies of the type relevant to the amendment on an individual basis where strong reasons for including them exist. We think that, as it were, a piecemeal approach, rather than the blanket approach proposed by my noble friend, is the better way for doing that.
I hope that that explanation is of some use, but if it is not I hope that my noble friend can at least read what I have said and consider whether that is satisfactory from her point of view.
Baroness Hamwee
I thank the Minister for that response. I follow everything he says, except, perhaps, his conclusion because I was not seeking blanket coverage. My draft would deal with the coverage of particular information only. I will read what he said, and I wonder whether I may be able to discuss this with him or his officials in order to understand whether the Government have in mind examples of the piecemeal extension to which he referred. Having said that, I beg leave to withdraw the amendment.
Lord Lucas
This amendment would give people seeking information the right to see that information in its original context. I beg to move.
Lord Henley
I thank my noble friend for speaking to his amendment with such brevity that he caught me unaware. He has set out how he seeks to introduce a provision into the Freedom of Information Act to the effect that, so far as is practical, and where they request it, applicants must be supplied with a copy of the original record containing the information in which they are interested.
I accept that disclosing copies of documents is often the easiest way of responding to freedom of information requests and that that practice is widely followed. In some instances, it may be reasonably practical in terms of cost to supply copies of the existing record, but there may be legitimate reasons why it is not proportionate to do so when the benefit to be gained is balanced by the burdens imposed. For example, the most reasonable interpretation of the amendment would mean that the additional information need not be released if it has not been requested, but if it is, the public authority would be obliged to provide pages of blacked-out text in order to provide the full existing record. I do not think that that would be the most appropriate way forward. Leaving the position that public authorities can provide copies of the original where necessary but they are not obliged to do so is possibly the more appropriate way to deal with this matter, and I hope my noble friend will feel able to withdraw his amendment.
Lord Lucas
I am grateful for that reply. I shall think carefully about what the Minister said, and if I need to ask further questions I shall do so when I meet his officials. I beg leave to withdraw the amendment.
Lord Henley
“Trafficking people for exploitationTrafficking people for sexual exploitation
(1) The Sexual Offences Act 2003 is amended as follows.
(2) For sections 57 to 59 (trafficking people for sexual exploitation) substitute—
“59A Trafficking people for sexual exploitation
(1) A person (“A”) commits an offence if A intentionally arranges or facilitates—
(a) the arrival in, or entry into, the United Kingdom or another country of another person (“B”),(b) the travel of B within the United Kingdom or another country, or(c) the departure of B from the United Kingdom or another country,with a view to the sexual exploitation of B.(2) For the purposes of subsection (1)(a) and (c) A’s arranging or facilitating is with a view to the sexual exploitation of B if, and only if—
(a) A intends to do anything to or in respect of B, after B’s arrival, entry or (as the case may be) departure but in any part of the world, which if done will involve the commission of a relevant offence, or(b) A believes that another person is likely to do something to or in respect of B, after B’s arrival, entry or (as the case may be) departure but in any part of the world, which if done will involve the commission of a relevant offence.(3) For the purposes of subsection (1)(b) A’s arranging or facilitating is with a view to the sexual exploitation of B if, and only if—
(a) A intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, or(b) A believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.(4) A person who is a UK national commits an offence under this section regardless of—
(a) where the arranging or facilitating takes place, or(b) which country is the country of arrival, entry, travel or (as the case may be) departure. (5) A person who is not a UK national commits an offence under this section if—
(a) any part of the arranging or facilitating takes place in the United Kingdom, or(b) the United Kingdom is the country of arrival, entry, travel or (as the case may be) departure.(6) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.(7) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (6)(a) to 12 months is to be read as a reference to 6 months.”
(3) For subsection (1) of section 60 (sections 57 to 59: interpretation) substitute—
“(1) In section 59A—
“country” includes any territory or other part of the world;
“relevant offence” means—
(a) any offence under the law of England and Wales which is an offence under this Part or under section 1(1)(a) of the Protection of Children Act 1978, or(b) anything done outside England and Wales which is not an offence within paragraph (a) but would be if done in England and Wales;“UK national” means—
(a) a British citizen,(b) a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has the right of abode in the United Kingdom, or(c) a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.”(4) Omit section 60(2) (sections 57 to 59: jurisdiction).
(5) Accordingly, the title of section 60 becomes “Section 59A: interpretation”.”
Lord Henley
My Lords, in moving Amendment 152B, I will speak also to Amendments 152C, 163A, 169A, 169B, 170A, 171A, 172A and 178.
As the Committee will be aware, the United Kingdom opted into the EU directive on human trafficking in October last year in order to send a strong message that the UK is not a soft target for those looking to exploit others. The directive builds on and supports existing international instruments designed to combat human trafficking, in particular the Council of Europe Convention on Action against Trafficking in Human Beings, to which the UK is a signatory. The UK is already largely compliant with this directive but it requires important changes to our criminal law, which these government amendments address.
Before I move on to spell out the detail of these amendments, I wish to pay tribute to my noble friend Lord McColl, who has through his Private Member’s Bill been a strong advocate of tightening the law in this area.
There are two areas where our criminal law on human trafficking currently falls short of the requirements imposed on member states by the directive: namely, the requirement to establish extraterritorial jurisdiction where the trafficker is a UK national and commits a human trafficking offence anywhere in the world; and the requirement to criminalise labour trafficking within the United Kingdom. Amendments 152B and 152C insert two new clauses into the Bill that will broaden the current human trafficking offences by extending extra-territorial jurisdiction over UK nationals and criminalising labour trafficking that takes place entirely within the UK.
The first new clause relates to trafficking offences for the purpose of sexual exploitation. Under Sections 57 to 59 of the Sexual Offences Act 2003, it is already an offence to traffic a person into, within or out of the United Kingdom for the purposes of sexual exploitation. In the interests of clarity, Amendment 152B proceeds by consolidating these existing trafficking offences into new Section 59A and adding the necessary additional provisions to ensure extraterritorial application of the offences where a UK national commits a trafficking offence anywhere in the world.
The new clause introduced by Amendment 152C, which relates to trafficking offences for the purpose of labour or other exploitation, follows the same approach as Amendment 152B. In addition, Amendment 152C fulfils another requirement of the directive. At the moment, it is not an offence to traffic someone from Manchester to London, for example, for the purposes of forcing them into slavery, unless the victim has previously been trafficked into the UK. This amendment removes this requirement. This brings labour-trafficking offences into line with sex-trafficking offences, ensures our offences comply with the requirements of the directive and provides better protection against trafficking. The other amendments in this group make consequential amendments to other enactments as well as to the extent clauses and the Long Title.
These provisions will apply to England and Wales only. We have been advised by the Scottish Government that, following the enactment of provisions in the Criminal Justice and Licensing (Scotland) Act 2010, the criminal law in Scotland already satisfies the criminal law requirements of the directive. The Northern Ireland Administration intend to bring forward separate legislation in the Northern Ireland Assembly to achieve a similar effect.
The Government are committed to implementing the rest of the EU directive on human trafficking. These amendments deal with those points of the directive that require primary legislation. The rest we will implement through secondary legislation or by other appropriate means. I commend the amendments to the Committee.
Baroness Hamwee
The opt-in to the directive is of far more than technical importance: the message that the opt-in sent was of great significance. I do not want to repeat much of what has already been said but, on the issue of a national rapporteur, I echo the noble Baroness and what the noble Lord, Lord McColl, has said previously about the importance of its independence. The Government have recently published a trafficking strategy and—because it is human nature—to expect them not to defend their own strategy and to see the issues in a more objective way is to demand more than is reasonable.
I also echo the request for an analysis of the matters that can be dealt with by secondary legislation—it is quite clear that the previous speakers have a much better grasp of the detail than I do—so that we can be assured that every point has been picked up, rather than an assumption that secondary legislation will do the job.
Lord Henley
My Lords, I hope that I can respond relatively briefly but I will have to write a number of letters to noble Lords.
On the issue of what further work we have to do through secondary legislation and other means, I shall write in detail to my noble friend, both noble Baronesses who have spoken and place a copy in the Library setting out exactly what we intend to do. The advice I have is that, although we were very nearly compliant, there were certain things that we had to do through primary legislation—and we have found this vehicle through which to do them—and other things that we can do through secondary legislation. Obviously it would be right for me to spell that out in detail.
My noble friend also had some queries about the drafting of the new clauses. In particular, he was concerned that the new clauses referred to offences committed by “a person”. I can assure him that “a person”—as I am sure the noble and learned Lord, Lord Scott, would have confirmed if he was still in his place—includes legal persons. That will include companies and other bodies, other than an individual as he and I understand that. That is the nature of the law.
Lord Henley
“Trafficking people for labour and other exploitation
(1) The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is amended as follows.
(2) For subsections (1) to (3) of section 4 (trafficking people for labour and other exploitation) substitute—
“(1A) A person (“A”) commits an offence if A intentionally arranges or facilitates—
(a) the arrival in, or entry into, the United Kingdom or another country of another person (“B”),(b) the travel of B within the United Kingdom or another country, or(c) the departure of B from the United Kingdom or another country,with a view to the exploitation of B.(1B) For the purposes of subsection (1A)(a) and (c) A’s arranging or facilitating is with a view to the exploitation of B if (and only if)—
(a) A intends to exploit B, after B’s arrival, entry or (as the case may be) departure but in any part of the world, or(b) A believes that another person is likely to exploit B, after B’s arrival, entry or (as the case may be) departure but in any part of the world.(1C) For the purposes of subsection (1A)(b) A’s arranging or facilitating is with a view to the exploitation of B if (and only if)—
(a) A intends to exploit B, during or after the journey and in any part of the world, or(b) A believes that another person is likely to exploit B, during or after the journey and in any part of the world.”(3) In section 4(4)—
(a) in paragraph (b)—(i) omit “under the Human Organ Transplants Act 1989 (c. 31) or”, and(ii) after “2004” insert “as it has effect in the law of England and Wales”,(b) in that paragraph, the words from “as a result” to the end of the paragraph become sub-paragraph (i), and(c) after that sub-paragraph insert “or(ii) which, were it done in England and Wales, would constitute an offence within sub-paragraph (i),”.(4) After section 4(4) insert—
“(4A) A person who is a UK national commits an offence under this section regardless of—
(a) where the arranging or facilitating takes place, or (b) which country is the country of arrival, entry, travel or (as the case may be) departure.(4B) A person who is not a UK national commits an offence under this section if—
(a) any part of the arranging or facilitating takes place in the United Kingdom, or(b) the United Kingdom is the country of arrival, entry, travel or (as the case may be) departure.”(5) Omit section 5(1) (section 4: jurisdiction).
(6) In section 5(3) (section 4: interpretation)—
(a) for “In section 4(4)(a)” substitute “In section 4—“country” includes any territory or other part of the world,”,
(b) the words from ““the Human Rights Convention” to the end of the subsection become the next definition in a list, and(c) after that definition insert—““UK national” means—
(a) a British citizen,(b) a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has the right of abode in the United Kingdom, or(c) a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.””
Lord Henley
Lord Henley
“(a) Chapters 1 to 3 of Part 5 (and Parts 6 to 8 of Schedule 9 and Parts 5 and 6 of Schedule 10), or(b) section (Trafficking people for labour and other exploitation) (and Part 9A of Schedule 9, and Part 8A of Schedule 10, so far as relating to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004),”
Lord Henley
Lord Henley
Baroness Hamwee
My speech moving Amendment 177 will be a little longer than the previous speech. This amendment takes us back to powers of entry to probe one particular point. I must make it clear that I support the restrictions on powers of entry. I know that the matter is likely to be pursued further on Report, and there are bound to be particular issues around particular powers. This power is one where I fear we may be in danger of throwing out a long-standing baby with the bath water.
My amendment would mean that the commencement of Schedule 2 would not be automatic but dependent on an order by the Secretary of State. It is merely a device to raise an issue which came to my attention only a few days ago, well after we had dealt with Schedule 2. Paragraph 12 of that schedule repeals Section 8(2) of the Landlord and Tenant Act 1985, which gives a landlord power to enter premises to view their state and condition. I had minor experience of this in the first flat I lived in in London. The landlord with, I am sure, entirely benign intentions used to come in and potter around. I could tell from the grains of coffee left around that he had been there, and on one occasion, he repainted the kitchen, but did not move the towel hanging on the back of the kitchen door and painted around it. That is minor against the issue of a property being fit for human habitation, which is the subject of Section 8 of the 1985 Act.
The landlord has an obligation to keep the property fit for human habitation. Most modern tenancies have a power of entry written into them—a contractual power, if you like—so there is no need for a statutory power, but the British Property Federation, which has raised this point with me, estimates that of the 120,000 or so regulated tenancies, many of which are very old and rely on statutory terms and conditions, something between 18,000 and 24,000 rely on statutory powers of entry. In other words, there is a legal and, I would say, moral obligation on a landlord, but he will have no means to inspect the property and fulfil the obligation. Unlike modern assured shorthold tenancies, these tenancies often encompass some of the oldest parts of the housing stock, from before 1919. They tend not to have turned over frequently and there is a pretty high probability that if they are not kept up to a good standard, they may become unfit.
I know that this matter has been discussed between the Home Office, looking at it from the point of view of the powers of entry, and the Department for Communities and Local Government. I also know that an issue has been raised that because these tenancies are subject to very low rent limits, they would not in fact come within the scope. I want to anticipate that argument by saying—again, I understand this from the British Property Federation—that the rent limits are those that were in the original contract and cannot really be cited now because that is the historical event which brought them within the scope.
The British Property Federation is very clear that the provisions in the 1985 Act are not redundant. It seems that there is a real issue here, where we should not let our enthusiasm for the principle over powers of entry obscure the need to address it. I would be the first to say that this amendment does not address it. I am merely trying to bring the issue into play at this stage—a late stage, I know—and I look forward to hearing what the Minister has to say on this. I suspect that it may be another matter where I am going to add to his diary commitments by suggesting that detailed discussion might benefit us all, but for the moment I beg to move.
Lord Henley
My Lords, as my noble friend has explained, the amendment relates to concerns that have recently come to light over the proposed repeal of Section 8(2) of the Landlord and Tenant Act 1985, as provided for in Schedule 2 to the Bill. This provision in the Landlord and Tenant Act grants landlords a power of entry to ensure that their properties are fit for habitation. The Act sets very low rent thresholds for London and elsewhere, which were agreed some considerable time ago. Because those rent levels were so low, it was originally our belief that there were no longer any existing tenancies to which the Section 8(2) power still applied. That being the case, we thought that the power could sensibly be repealed. It has since come to our attention from the same source that my noble friend mentioned, the British Property Federation, that there is a significant number of legacy properties to which this provision continues to apply. The BPF has indicated that there are in fact some 18,000 to 24,000 tenancies where this power of entry would continue to operate.
Landlords have a duty to ensure that the properties they rent are fit for habitation. In the overwhelming majority of cases, we would expect tenants freely to admit the landlord into their property to inspect it. In such cases, landlords have no need to use their statutory power of entry but in isolated cases the tenant may not be co-operative and there is therefore a continued need for this power. While we still intend to repeal this power of entry we propose to introduce a saving provision, using the order-making power in Clause 110, to ensure that the power remains available in respect of existing tenancies. In the case of any new tenancies, a power of entry can be provided for in the tenancy agreement as would normally be the case, as my noble friend will be fully aware as a solicitor. I thank her therefore for raising the matter. I hope that we do not need to have a meeting on this occasion, that she is satisfied by the explanation that I have given and that she will be happy to withdraw her amendment.
Lord Henley
Public Disorder: Uninsured Claimants
Lord Henley Excerpts(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Clement-Jones
To ask Her Majesty’s Government what action they are taking to ensure that police authorities speedily and fairly settle claims outstanding under the Riot (Damages) Act 1886, particularly for uninsured claimants.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government are committed to dealing with all claims where property was damaged in the August disturbances. We are working closely with the affected police authorities and the insurance industry to ensure that the processes that they have in place allow claims to be made as quickly as possible.
Lord Clement-Jones
My Lords, thousands of households and businesses are still waiting for compensation from police authorities after all this time. Some £3,500 has been paid out, of the £200 million or so worth of claims, and many valid business interruption claims are being contested. Does the Minister agree, especially in the light of the Prime Minister’s assurances on 11 August, that this is quite unacceptable? Will the Home Office issue firm guidance to police authorities to speed up the processing of claims and stop them hiding behind technicalities—for instance, that in some areas the disturbances did not constitute a riot for the purposes of the Act?
Lord Henley
My Lords, I accept what my noble friend says, that things have not been as speedy as they should have been. We estimate that some 5,000 claims have been received, totalling in excess of £250 million, but we must remember that a lot of those claims will include claims for loss that are not covered by the Act. We have to ensure that we do not pay out for things that the Government are not responsible for. We will try to deal with—as the noble Lord implied in his original Question—the uninsured claimants first of all, but obviously we want to deal with the insured claimants as well. That is why I stress that we are working with both the police authorities and the insurance companies to ensure that that is the case.
Baroness Sherlock
My Lords, I am grateful to hear that the Minister has offered a figure. I put down a Written Question to ask him how many payments had been made under the Riot (Damages) Act, and the Answer was three sentences long. It told me that applications for compensation were made directly to police authorities, and:
“There is no requirement for them to provide this information to the Home Office. Therefore, the precise figures of payments that have already been made to claimants will be held locally by each police authority”.—[Official Report, 8/12/11; col. WA198.]
In other words, go and ask them. Does the Minister accept that the Government in fact bear responsibility for sorting this problem out? If so, will he be willing to report to the House what progress is being made?
Lord Henley
My Lords, I gave an estimate of the number of claims but I cannot give an absolute figure. That is why I stress that it is only an estimate that 5,000 have been made. One has to accept that a lot of those claims will not be valid; in certain areas there have been many more claims than one would expect. I make no further comment on that.
I will certainly keep the House fully informed about how we are getting on with these matters. We want to ensure that all claims are settled as quickly and fairly as possible, and that when we are dealing with public money it is handed out in the appropriate manner.
Lord Imbert
My Lords, does the Minister agree that the Riot (Damages) Act, which was passed in 1886 for a different society from the one that we have today, is anachronistic, outdated and unfair? The police service has had its budget cut by 20 per cent this year. How can it afford up to £200 million in compensation? The Act has the connotation of blame. If we are looking for blame for the riots, should we look at the economic policies of successive Governments in failing to provide employment?
May I draw a picture of a single mother, living on the 13th floor of a block of council flats with three teenage children? She starts work at 5 am every morning as a cleaner, does another job in the afternoon and comes home to hungry and cold children, yet we blame her for not looking after them. They have never, in their whole lives, had a new pair of trainers but now have an opportunity. As far as the money is concerned—
Lord Imbert
What about the £200 million or so that the Government will spend on appointing political commissars in the police service next year?
Lord Henley
My Lords, the noble Lord is making another point. I accept his remark that the Riot (Damages) Act 1886 is possibly past its sell-by date. For example, it does not cover motor vehicles, which had not been invented at that time. However, the Government have made it clear that we stand ready to provide financial support to police authorities and we do not see any of them losing out as a result of these claims.
Lord Cotter
My Lords, it is four months since the riots occurred and very strong assurances were given by the Government that businesses would be helped. The official report and other reports indicate that very few businesses have received the help that they expected to be given—and that we expected them to be given. I asked in September whether the Government would monitor the situation. Will the Minister give tangible figures and update us on the situation?
Lord Henley
My Lords, the Government have been monitoring the situation. My honourable friend the Minister for Policing has met representatives from the West Midlands police force, the Greater London Authority, the Met and the Greater Manchester police force. He has met the insurance companies, Kit Malthouse and a vast number of people. We are doing these things as quickly as possible. We extended the deadline by which people could make claims by 42 days. We have the whole subject under review, as I made clear in response to another question, and we will respond to those reviews in due course.
Lord Hughes of Woodside
My Lords, the Minister has been asked for figures three times. He keeps saying that the situation is under review and is being monitored. It is not monitoring that is required—it is action. Will he do something about it?
Lord Henley
My Lords, I totally reject that. I have made it clear that we estimate that there have been something of the order of 5,000 claims. We estimate that those claims total some £200 million to £250 million. That does not mean that all those claims are valid. Before we pay out public money, we want to make sure that they are valid and we will do that properly. We want to make sure that the uninsured are paid first and then deal with those who were insured, making sure that the insurance companies are repaid. That is why we are talking to the ABI.
Lord Elystan-Morgan
My Lords, I give the fullest support to the Minister’s indication that the Government regard the Act as having passed its sell-by date. Taking the point of the noble Lord, Lord Imbert, may I ask the Government to look very carefully into the whole philosophy of whether it is right, in the 21st century, that claims should be made against police authorities, as opposed to a more general claim, perhaps against the Government? I also make the point that the definition of “persons” in the Act is deeply flawed, as are the definitions of “property”. The Act should also be brought up to date to allow claims in respect of motor vehicles.
Lord Henley
The noble Lord is right to quote me as saying that the Act is beyond its sell-by date and needs to be reviewed. That is why it is being reviewed. I do not believe that the police forces will lose out. That is why we have made it clear that the Home Office is ready to support them. We will make sure that that is the case where appropriate. However, the important thing is that we look at the result of those reviews of the Act and then make the appropriate decisions.
Immigration
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Lord Taverne
To ask Her Majesty’s Government whether they will reconsider their curbs on immigration in the light of their effect on competitiveness and economic growth.
The Minister of State, Home Office (Lord Henley)
My Lords, we will not. We are clear that the United Kingdom remains open for business. Our changes mean that we will continue to welcome the brightest and best who have the most to contribute to this country. At the same time, we are putting an end to the unlimited migration of recent years that has created unacceptable pressures on our public services.
Lord Taverne
My Lords, I acknowledge that there is a need for some control, but the Government seem to have indicated that they will reduce the number of non-EU migrants who wish to settle here after they have completed their studies. Will the Government take note of a powerful letter, written about a month ago to the Financial Times, by a number of very eminent academics who came here as non-EU immigrants and who would not have come if they had been told at the start that they would not be allowed to stay?
Lord Henley
My Lords, we will obviously listen to those academics but I have to say that the university sector as a whole is not complaining about what is happening. What we did was introduce a cap of just over 20,000 people, following the advice of the Migration Advisory Committee, on the number of skilled workers who were coming in. So far, in the first six months of this year, some 6,000 of those places were taken up—there is obviously a lot of slack in the system. There is no danger that any skilled workers are being denied the opportunity to come in.
Lord Hunt of Kings Heath
My Lords, on the question raised by the noble Lord, Lord Taverne, can we come back to the issue of universities and overseas students? The Minister has always maintained that the Government’s restrictions were aimed at bogus colleges. If we accept that, will he acknowledge that universities are now reporting that the policy is having an impact? First-class universities are being affected by the cap and first-class students are being turned away. Surely that part of the policy ought to be reviewed.
Lord Henley
My Lords, obviously, we will keep all these matters under review as is appropriate, but the noble Lord will also accept that it is quite right that we should attack the bogus colleges, which his party took no trouble to attack over the years. That is why there was a dramatic rise in the number of people coming here allegedly to learn English or some other thing, who went to colleges where no courses were going on and virtually no one enrolled other than to get round immigration rules.
Baroness Hollis of Heigham
My Lords, does the noble Lord accept, as my noble friend said, that about 60 per cent of the non-EU migrants to this country are students and that, of those doing a proper degree course at the sort of university that my noble friend talked about, 98 per cent are compliant with immigration controls and return to their country—98 per cent? So we are losing both the opportunity of their fees coming into the university sector and the possibility of helping DfID export their skills back to their home country.
Lord Henley
My Lords, I do not accept what the noble Baroness says, but if she can provide proper evidence for that, we will certainly look at it in due course. We are not aware that universities are complaining; we are aware that a certain number of private colleges— the bogus colleges to which I referred earlier—are complaining. That is why we will want to deal with that. In the main, I think it is quite right that we should tighten up on people coming to university and that is why, for example, there are rules about family members coming in which, again, the party opposite failed to introduce. Those have been tightened up for undergraduates but not for postgraduates.
Lord Hannay of Chiswick
My Lords, has any consideration been given, or is consideration being given, to taking students out of the immigration system? Now that the business of bogus academies has been dealt with rather effectively—I welcome that—would it not be sensible to recognise that the university sector is the most rapidly growing invisible export that this country has? It is simply not good enough to say that universities are not complaining. There may be some vestige of a lack of complaint from some body or other, but I would suggest that, if the noble Lord goes round the universities carefully, he will not find that that is the case.
Lord Henley
My Lords, I accept what the noble Lord has to say about universities being a very valuable export—we acknowledge that—but there should also be controls on students coming in. One area where we provided stricter controls is on undergraduate students bringing in families, which was seen as a form of abuse. We were quite right to tighten up on that and to keep more general matters under review, and that is what we will continue to do.
Lord Cormack
My Lords, of course my noble friend is right to maintain his attack on bogus colleges, but the point made by the noble Lord, Lord Hannay, deserves real consideration. At a recent dinner attended by the Minister for Universities and Science, Mr Willetts, at which there were eight or nine historians each from a different university, they were unanimous that this is having a deterrent and potentially disastrous effect. All we need is a little more sensitivity in the interpretation of the rules, or to put students in a separate category.
Lord Henley
My Lords, I acknowledge what my noble friend says. I am fully aware of these problems, having been the spokesman on higher education in this House, but there have been abuses. I referred to the fact of family members coming in with undergraduates. We have tightened up on that. I remember, as can many other noble Lords, that back in the early 1980s, when we first brought in fees for overseas students, we thought that we would lose out dramatically. We did not; we saw an increase in the number of overseas students coming in. I am sure that if we get this right and listen appropriately, we will continue to see a great many overseas students coming to our world-class universities.
Lord Tomlinson
My Lords, why does not the Minister agree with the sensible report that came from the House of Commons Home Affairs Committee? That raised the very issue raised by the noble Lord, Lord Hannay, that students should not be treated as migrants. We are sending out a message to all overseas students who would otherwise have come to this country—some in the public sector, some in the private sector—that they are a troublesome group who need to be controlled.
Lord Henley
The very simple reason is that some—particularly in the private sector, which is why I referred to private sector colleges—were involved in an abuse. If there is an abuse of the system, we have a duty to tackle it, and that is what we have done.
Baroness Hamwee
My Lords, the Minister may be aware of a recent report from the London Chamber of Commerce and Industry entitled Migration Reform: Caps Don’t Fit. It concludes:
“Our research shows that one of the main reasons companies recruit from beyond the EU is their desire to explore and invest in new, overseas markets”.
It also says that, if the UK’s economic recovery is to be export led, this is a particularly important consideration. Does the Minister acknowledge that?
Lord Henley
My Lords, I think that I have followed what my noble friend has said. Obviously, we recognise the importance of universities—as I said in response to the question from the noble Lord, Lord Hannay, they are a major part of our exports. However, I also see what my noble friend is getting at. I have not seen the research that she refers to, which talks about the need to bring in workers from outside the EU. However, the point that I was making in my first supplementary answer was that we have a cap on the number of skilled workers, and we have not got anywhere near that cap in the first six months of this year.
Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011
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Lord Henley
That the draft regulations laid before the House on 14, 21 and 25 November be approved.
Relevant documents: 33rd, 34th and 35th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 14 December.
EUC Report: Money Laundering
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The Minister of State, Home Office (Lord Henley)
My Lords, as always, I am grateful to the noble Lord, Lord Hannay, and to other noble Lords who have spoken, particularly the noble Lord, Lord Judd, and my noble friend Lord Dykes who are members of the committee. I am grateful that we have had an opportunity to debate this report of the EU committee as well as, to some extent, the 2009 report and the Information Commissioner’s report which dealt with a number of these matters. I am also grateful to the noble Lord, Lord Hannay, for outlining the very important work that the House does in relation to its post-legislative scrutiny of these matters. I hope that I can give a reasonably detailed response to the various points that have been made.
The first important point is the Information Commissioner’s report. I am grateful to the noble Lord, Lord Rosser, for emphasising that. That made a number of findings, notably referring to the Elmer database. As someone rather new to this, I was fascinated to discover that the Elmer referred to in that name is not an acronym but the first name of the original head of the United States Department of the Treasury intelligence unit, back in the 1920s or 1930s, who was responsible for nailing or achieving the conviction of Al Capone on the famous occasion when they got him for tax evasion rather than for other matters. We must be grateful to that Elmer—I imagine in the United States they are even more grateful—for so doing.
The first point of call with the Information Commissioner’s report is access to the Elmer database. Secondly, the Information Commissioner referred to the retention of records, which are of no concern and which may not comply with data protection principles. Thirdly, the report also refers to how SOCA develops retention policies which are data protection and human rights compliant. I hope that I can deal with all those matters as I know that the noble Lord, Lord Hannay, as chairman of the committee, will have been particularly concerned about how SOCA had been actively working on these recommendations.
I start with access to Elmer. As recommended in the report, SOCA has continued to maintain its robust policies and procedures in respect of access. It must be remembered that Elmer is a very important intelligence tool, not just in respect of financial crime but in respect of all levels of all crime. The use of financial intelligence is not an addition but an essential part of the wider armoury of techniques to investigate criminality. That said, obviously access to Elmer has to be limited and those wanting direct access have to go through a user agreement which sets very strict criteria and which is kept under review. It is also of importance that these are individual financial investigators rather than bodies themselves. SOCA provides guidance to users and all users are required to undertake training which is generally delivered by the National Policing Improvement Agency or some other similarly approved agency before accessing the database.
Having said that, I cannot give any assurance about who may have access to Elmer in the future but, of course, concerns of this House will be considered very carefully as we develop these items.
I move on to the question of record retention and deletion policy. SOCA has introduced a new retention regime that will delete suspicious activity reports that are more than six years old. It expects to complete this task very soon. I will add one further remark. I need not even say “very soon” because the task was completed today. I can assure the noble Lord that as of today there are 1,384,477 entries on the Elmer database, and that 584,351 entries were deleted in a recent exercise. All entries that were more than six months old were deleted today, so we achieved the aim of deleting them by the end of the year.
My third point on the Data Protection Act is that SOCA will implement a Data Protection Act and Human Rights Act-compliant retention policy in three months. It is important to note that the Elmer database does not focus specifically on collecting information relating to individuals. It is essentially an assembly of reports submitted in the light of the Proceeds of Crime Act, the Terrorism Act and associated regulations. SOCA has introduced processes that will provide for the immediate deletion of SARs that are confirmed as being not linked to criminality, and for the deletion of others after six years. That is why I was pleased to make the remark about what we achieved today.
The report also asked if there was a justification for the current arrangements for reporting SARs. We feel that setting a suspicion threshold would send the wrong signal to reporters, who may reduce their scrutiny. Experience shows that criminals will attempt to find ways to circumvent controls in order to avoid arousing suspicion—for example, by breaking down large deposits. Reports that may look minor may take on a much larger significance to law enforcement when matched with intelligence both within Elmer and beyond. A threshold might have the unintended and unwanted effect of causing us to miss vital intelligence opportunities.
I will deal with a couple of further questions. The first, which was raised by the noble Lord, Lord Hannay, referred to Somali piracy. We recognise the committee's concerns regarding possible links between the payment of ransoms and terrorist finance in Somalia. There is currently no evidence of any formal organisational relationship between pirates and terrorist organisations operating in Somalia. However, we are keeping this assessment under review. My honourable friend Mr James Brokenshire, who was referred to by the noble Lord, Lord Rosser, is in receipt of the letter on this matter from the noble Lord, Lord Roper, and will provide an appropriate reply in due course. I cannot take that further and say precisely when it might appear.
The second point I will deal with, which concerns money-laundering and the Financial Action Task Force, was raised by my noble friend Lord Dykes.
Lord Hannay of Chiswick
The noble Lord is moving on from the question of Somali piracy, so I must draw his attention to the fact that he has not answered the main point that I made. One can have two views about whether it is meaningful to say that there is no direct evidence of ransom moneys reaching terrorists. However, I am not pressing the point and did not press it in my introductory question. The question that I pressed, to which he did not reply, was why the Government do not consider that the assembling of such ransoms should give rise to the filing of suspicious activity reports, because the ransoms concerned will undoubtedly be the proceeds of crime and will undoubtedly end up in the hands of criminals? In all our correspondence it has been impossible to get an answer on this point. That is why I used the somewhat unparliamentary term, “obfuscation”. Why are the Government not simply telling people who put together these ransoms that if they have reason to believe that these will end up in the hands of criminals—and I cannot believe that they do not have that—then they should file an SAR? That does not mean that the person who files the SAR is committing or admitting any wrongdoing at all. However, I find it hard to believe that since the British Government are, I assume, trying to prevent the laundering of the proceeds of ransoms around the world, are working with many other countries to do that, and have, I believe, an intelligence operation based in the Seychelles to compare evidence and to try to find out where this money goes to—
Lord Hannay of Chiswick
I am sorry; I am just coming to the end. I just was saying that I still find it very odd—it would be helpful if the Minister would reply on this point—that the Government do not consider that an SAR should be filed in such circumstances.
Lord Henley
My Lords, the noble Lord would never expect any obfuscation from me. He is a very distinguished former civil servant from the Foreign Office, a department which also has never obfuscated in any way whatever. I would prefer it if he would wait for a response from my honourable friend Mr James Brokenshire, which I am sure will be provided in due course. I think that that is as far as I can go on these matters, and I hope that the noble Lord will accept that. I am also mindful of the intervention of my noble friend the Chief Whip that I must move on.
I was briefly touching on the question of the Financial Action Task Force, and briefly making it clear to my noble friend Lord Dykes that it is reviewing global standards on countering money-laundering and terrorist financing. In February 2012 the FATF member countries will approve changes to the standards following this review. I hope that my noble friend will be prepared to wait for that review.
I hope that I have given a number of assurances that will satisfy noble Lords, even the noble Lord, Lord Hannay. I hope that he will be prepared to await the response from my honourable friend Mr Brokenshire. Again, I am grateful to all noble Lords for their interventions in this debate. I feel that we have had a useful discussion on these matters.
Justice: Evidence
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Lord Lloyd of Berwick
To ask Her Majesty’s Government when they expect to receive a further report from the Privy Council review, led by Sir John Chilcot, on using intercept as evidence.
The Minister of State, Home Office (Lord Henley)
My Lords, there have recently been changes to the membership of the Privy Council group. I look forward to it reconvening shortly to assess progress and, as appropriate, to offer advice.
Lord Lloyd of Berwick
My Lords, it is now nearly four years since the Chilcot committee was asked to find a way of making intercept evidence available in court. The preferred approach has always been by what has been called public interest immunity plus, which has many advantages. However, in December 2009, that approach was abandoned in the light of the decision of the fourth section of the European Court of Human Rights in a case from Finland. Since then, we have heard very little. Does the Minister recall that a month ago the Lord Chief Justice and the president of the Supreme Court gave evidence that the courts are following decisions of the European Court of Human Rights too strictly? If that is accepted, would he encourage the Chilcot committee to look again at PII+ and perhaps take further legal advice?
Lord Henley
My Lords, I am sure that the group will want to reflect on the implications of the judgment to which the noble and learned Lord referred in the European Court of Human Rights and to reflect on the remarks of the Lord Chief Justice when he said that the United Kingdom courts should give due weight to decisions from the European Court of Human Rights. However, the noble and learned Lord should recognise that experience in other countries, whether they are bound by the European Court of Human Rights or not, is that using intercept as evidence involves significant operational burdens, and that the review is helping to address those issues by trying to find the right balance between advantage, costs and risks.
Lord Carlile of Berriew
Will my noble friend the Minister confirm that the Privy Council review has been looking at a very small number of possible models for admissibility and that the key issues, as the noble and learned Lord, Lord Lloyd, said, concern the ECHR, upon which the review might perhaps take note of the recent and very helpful public comments of the noble and learned Lord, Lord Irvine? Will the Minister try to ensure that, given that all the legwork has actually been done now, an announcement is made within weeks rather than months?
Lord Henley
My Lords, it is not for me to decide when the Privy Council group should make its decisions. That must be a matter for the group itself. As I stressed at the beginning, there have been changes to the membership of that group, which has complicated matters and slowed things down somewhat. As I said, I am sure that the group will take account of the implications of the judgment in the European Court of Human Rights and of the views expressed by the noble and learned Lord, Lord Irvine.
Lord Hurd of Westwell
As a former member of the group that we are talking about, could I press my noble friend a little further on this point? My recollection is that some time ago we were within spitting distance, we were within reach, we were edging fast towards a settlement or compromise that would satisfy both the main parties and points of view in this complicated matter. What has gone wrong since then?
Lord Henley
My Lords, it is not for me to pronounce on the problems that the group is having. As my noble friend knows from his distinguished service on this group, the membership has changed not once but twice over the last year or so. There are difficult issues to be addressed. I know that it came forward with one model, and there were problems with that, but I think my noble friend will accept that trying to get the right balance, to which I referred in my first Answer, between advantage, costs and risks is a very great challenge and one that we want that group to get right.
Lord Rosser
I am not clear from the Minister’s answer whether the Government have a view on this issue or not. In light of the remarks made by the Lord Chief Justice in relation to the ECHR decision to which the noble and learned Lord, Lord Lloyd of Berwick, referred, do the Government take the view that there appears to be no insurmountable obstacle in principle to the use of intercept evidence, or are our intelligence services still voicing significant concerns on this issue?
Lord Henley
There are obviously significant concerns about using intercept as evidence. It can be very useful as intelligence, but using it as evidence can create significant problems. We want to address those problems and make sure that we have got it right before we allow intercept to be used as evidence. That is why the previous Government set up the review under Sir John Chilcot and why we are continuing to look at the work that it is doing and looking forward to its report in due course.
Baroness Ramsay of Cartvale
I understand that what happened was that the first group of privy councillors under Sir John Chilcot, of which the noble Lord, Lord Hurd, was a member, made a report that was considered. It then went into the next phase, with the privy councillors liaising with an action unit, or something like that, in the Home Office. That activity has hit problem after problem. It is not the fault of the privy councillors that there is a delay in reaching a solution. As the Minister said, it is a very complicated matter.
Lord Henley
The noble Baroness is absolutely correct. I was not trying to imply any criticism of the group; I was saying that it has put forward a solution that we have found a number of problems with. We will continue to look at any ideas that it puts forward. If we could use intercept as evidence in a manner that was safe and appropriate, we would, but again I stress that we have to get the right balance between advantage, costs and risks.
Baroness Hamwee
My Lords, when I heard the Minister’s original Answer I wondered whether it was a case of changing the membership if you do not like what is being said, and in this case I would welcome that. However, does the Minister accept that the longer this goes on, the less trust and confidence there is among those of us who take an interest in this about whether there is a real determination to reach a good and useful outcome?
Lord Henley
My Lords, the only reason why the membership changed was because the noble and learned Lord, Lord Archer of Sandwell, stood down due to reasons of health. He has been replaced by Shaun Woodward, and there is nothing else behind that.
Lord West of Spithead
My Lords, during my three years as Minister for Security, almost every key plot against this nation was first identified through the auspices of GCHQ and this sort of intelligence. While one has to be sad that things have been delayed, will the Minister confirm that the most important thing to get right is not to lose any of the skills and capabilities that have been lost in the past when people have spoken about them unnecessarily?
Lord Henley
My Lords, the noble Lord is absolutely right to underline the importance of intelligence—and I stress the importance very often of intercept as intelligence. Whether it can be used as evidence is always another matter. Frequently, even if it could be used as evidence, it would not be very useful evidence, having been useful intelligence.
Crime: Metal Thieves
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Lord Faulkner of Worcester
To ask Her Majesty’s Government what action they are taking to establish a nationwide task force to target metal thieves.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government recognise the growing problem of metal theft and are taking urgent steps to address it. Five million pounds has been provided to establish a dedicated national task force to significantly increase enforcement activity to deal with both scrap metal dealers who trade in stolen metal and those who steal metal.
Lord Faulkner of Worcester
My Lords, that is fine as far as it goes but does the Minister agree with what his Home Office colleague James Brokenshire said in the other place on Monday? Mr Brokenshire estimated that the cost of metal theft may be now as much as £777 million a year and said,
“we have now reached the stage where the only conclusion is that new legislation is needed to tackle metal theft”.—[Official Report, Commons, 12/12/11; col. 508.]
As a vital first step, will the Minister accept my amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, which would make cash transactions for scrap metal sales illegal, bearing in mind that probably as much as £1 billion out of the £5 billion in this industry is accounted for in cash and is the cause of most of the problems?
Lord Henley
First, my Lords, I always agree with everything that my honourable friends say and I agree with absolutely everything that my honourable friend Mr James Brokenshire said on Monday about metal theft. We think that the Scrap Metal Dealers Act 1964 is dead. It is past its sell-by date and we need to look at other measures to properly regulate the scrap metal yards, because that is where the problem is—in dealing with the stolen metal. We will certainly look very carefully at the noble Lord’s amendment, which I have not yet seen, when it comes before us shortly in the legal aid Bill. If we can give it a fair wind or tinker with it, we certainly will because I agree with him that addressing the question of cash in this industry certainly needs looking at.
Baroness Howarth of Breckland
My Lords, does the Minister agree that the stakes have been significantly raised in this issue, now that it is a question not only of very significant funds but of human lives being put at risk in hospitals, when hospitals have to close and operations have to be postponed because metal has been stolen by thieves? Does that not raise the measure of the issue significantly?
Lord Henley
My Lords, the noble Baroness is quite right to raise the issue of the threat to life. Already this year, I think that some six criminals have been killed stealing metal—it is perhaps a higher figure—but in stealing that metal they have caused considerable disruption to power supplies and other things. We know that that has affected not only hospitals but, on other occasions, the emergency services. That is why the Government certainly feel it necessary that we must make moves in the area.
The Lord Bishop of Oxford
My Lords, the call for tighter regulation of scrap yards, including cashless transactions, is widespread. We know that the industry itself wants to back regulation. I wonder whether the Minister could be a bit more specific on the timescale and when we might expect some real reform of the regulations, including particularly the easy access to cash which supports something causing not only the damage of yesterday that we have heard about but damage in our own case. We have around 10 churches a day losing their roofs. Can we have a timescale?
Lord Henley
My Lords, the right reverend Prelate is right to draw attention to the problems that the churches are facing. I recently met his colleague, the right reverend Prelate the Bishop of London, to discuss this issue. He is also right to draw attention to the fact that the industry itself recognises the need for more regulation in this field, which is why we want to go down that route. However, although the industry recognises the need for more regulation, it does not see the advantages of going cashless. I think that going cashless would possibly be the biggest gain to make.
The Earl of Glasgow
Metal theft has become a really serious epidemic. As the noble Baroness said a moment ago, only about two days ago some copper metal was taken from a hospital in Wales and that resulted in eight operations having to be abandoned. I want to be assured by the Minister that the Government are going to deal with this very urgently and have some plans to deal with these scrap metal dealers as soon as possible.
Lord Henley
My Lords, I can give my noble friend that assurance. The important thing to say is that is very difficult to stop the actual theft, given how widely spread all the various metals are. That is why we think the important thing is to deal with the handling, and why we want to deal with the yards. If we could cut off the route for getting money from these stolen metals, we would then cut off the thefts.
Lord Hughes of Woodside
My Lords, in view of the danger to life in hospitals and the very possible serious damage to life due to metal theft on the railways, is the Minister satisfied that there are sufficient penalties available once the criminals—either the thieves or the receivers—are caught? I would not normally call for harsh sentences but in view of the salutary sentences given to the rioters, should we make sure that there are salutary sentences for those engaged in this dangerous and life-threatening trade?
Lord Henley
My Lords, my memory of the Theft Act is sketchy but, as I remember it, it provides for seven years for theft, something considerably longer for burglary—which most of this would come under—and makes very severe long sentences available for handling. It is the handling we want to get at because it is the fence who deals with the metal who provides the value to it.
Lord Cormack
My Lords, as we desperately need a solution to this terrible problem and as the Deputy Prime Minister desperately needs a success, why can we not put him in charge of the committee to come up with a solution to this metal theft problem?
Lord Henley
My Lords, I assure my noble friend that the whole Government are united on this issue. We just have to sort out the details before we bring forward legislation.
Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011
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Baroness Royall of Blaisdon
My Lords, we have heard today some extraordinarily powerful and important speeches. When we were in government, one measure that we were most proud of, rightly I believe, was the Equality Act 2010, which we managed to pass through Parliament just before the general election. We did so with the support of the Conservative Party and the Liberal Democrats, then both in opposition. The parties opposite were consistent in their support for the legislation; I thanked them for it then and I thank them for it now, although I am concerned about a few aspects of the Act that are being chipped away. But that is not an issue for today.
When my noble friend Lord Alli moved his amendment and it was adopted by this House during the passage of the Bill, I was not able to fully support him. But I am delighted that his amendment was adopted and has resulted in the regulations before us today. The overriding point about the regulations and the legislative clause in the Act to which they refer is that, as so many noble Lords have said, they are permissive. They permit churches and any other religious premises to enable two people to register as civil partners of each other under the terms of Section 6(3A)(a) of the 2004 Act.
I warmly welcome so many speeches today, but especially the contribution from the noble Baroness, Lady Richardson of Calow, who was absolutely right to point out very forcefully that the provisions are permissive. They do not in any way require churches to provide civil partnerships to take place. They do not order them to do so or compel them to do so; they simply make it possible for them to do so should they so wish.
The noble Baroness, Lady O’Cathain, argues that the proposals are not sufficient to protect faith groups from being compelled to register civil partnerships when it is against their beliefs. The noble Baroness is supported by a number of legal opinions. However, we believe that the legislation itself is clear. Section 202(4) of the Equality Act 2010 provides that the following should be inserted after Section 6(3) of the Civil Partnership Act 2004:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
That expressly states the point—the wording is clear and the meaning is clear, and we believe that the effect is clear—and so do the regulations in front of us today, which state, in Regulation 2(3), that the following should be inserted into the Marriages and Civil Partnerships (Approved Premises) Regulations 2005:
“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises as a place at which two people may register as civil partners of each other in pursuance of section 6(3A)(a) of the 2004 Act”.
Again, there is clear wording, clear meaning and clear effect.
The noble Baroness, Lady O’Cathain, has deployed legal opinions that support her view, quite properly, primarily those from Professor Mark Hill QC and Aidan O’Neill QC. But many noble Lords from all Benches have cited a number of different opinions today, and the speech from my noble and learned friend Lord Falconer of Thoroton was masterful and gave a very clear opinion. His responsible views were unequivocal and were supported by many noble Lords throughout the Chamber today.
It was useful and heartening to hear the views expressed by the right reverend Prelate the Bishop of Oxford, who confirmed that the necessary safeguards are in place according to the Legal Office of the General Synod of the Church of England. I hear of course the differing views expressed by the right reverend Prelate the Bishop of Blackburn, but I believe that many of the issues raised by the right revered Prelate the Bishop of Blackburn are matters for the General Synod itself, and not for this House or the Houses of Parliament. It is also important to consider a statement from the Catholic Bishops’ Conference of England and Wales, which takes a similar view to the Church of England:
“As the regulations require prior consent, the measure can have no impact on Catholic premises. The church welcomes the fact that the Government has made an explicit statement in the draft regulations that nothing in them creates any obligation to make an application for approval. This will help rebut any attempt to mount spurious cases of unlawful discrimination against churches which do not host civil partnerships”.
The Government’s clear view is set out in their summary of responses to their consultation on civil partnerships on religious premises, published last month, and I agree with the view expressed. The noble Lord, Lord Henley, Minister of State at the Home Office, says in a letter this week to Members of your Lordships’ House:
“I must stress that this provision is entirely permissive. We are entirely confident that faith groups will not be forced to host civil partnership registrations if they do not wish to do so”.
He goes further, by indicating further legislation if necessary. The Government’s clarity and confidence, which we as an Opposition share, is supported by the statutory body on discrimination, the Equality and Human Rights Commission, which states in its response to the consultation:
“The Commission is also pleased that this provision is voluntary, placing no obligation on religious communities to conduct such ceremonies where this would be against their conscience or religious beliefs”.
We have heard a plethora of legal opinions in this debate, but also the important views of many noble Lords who do not have legal experience. Most importantly, we have heard the views of my noble friend Lord Alli. When he moved the original amendment in your Lordships’ House, he could not have been clearer:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
He has been equally clear today. These are compelling arguments, and I believe that they are conclusive arguments. There is nothing in the legislation or in these regulations which requires churches to host civil partnerships. The legislation and the regulations associated with it were designed to be permissive and not compulsory; they are written to be permissive and not compulsory; and they are best interpreted as being permissive and not compulsory. Some noble Lords have mentioned fear. Like the right reverend Prelate the Bishop of Oxford, I believe that we must act in a spirit of mutual respect and generosity.
If the noble Baroness, Lady O’Cathain, should test the opinion of the House today, we on these Benches will be opposing the noble Baroness and supporting the regulations. And yes, we have a Whip on, because we believe it is right to do so. I believe the record of my party, the Labour Party, on equality issues, is second to none, and we intend to maintain it in the Lobbies today if this matter does go to a Division.
The provision to allow, if they so wish, churches to host civil partnerships, is a good provision. The regulations are good regulations, and the original legislation—our own—was good legislation. I urge the House to support the regulations, and to sustain legislation of which this House should be proud in having played its part to get on to the statute book of this country.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by echoing the words of the right reverend Prelate the Bishop of Oxford when he suggested that we needed to conduct debates of this sort with restraint, mutual respect, and generosity. I am very grateful to the House that that has been the case today on a subject that can generate very strong feelings.
To my noble friend Baroness O’Cathain, I say that although, as she knows, I will not be able to support her Motion, and although I very much hope she will not be pressing it to a Division—I do not think it would be wise so to do—I am grateful for the fact that we have had the debate. In my view, it has brought a great deal of clarity to this subject—particularly on the legal aspects of it. I am therefore grateful for the interventions from the noble and learned Lord, Lord Falconer, and from a whole host of other legal luminaries sitting all round the Chamber.
I am also very grateful that a large number of Peers have quoted from the letter that I sent out two days ago. This does at least encourage me to think that it did reach most noble Lords, though I appreciate that one or two noble Lords did not receive it. For that I can only apologise, but I can make copies available, should anyone wish to have one, after this debate. I will be quoting from my letter later on, possibly in response to the request from the noble Lord, Lord Lester of Herne Hill to, as it were, add a Pepper v Hart element to what I have to say.
We recognise that in allowing this expression of religious freedom and advancement for lesbian, gay and bisexual equality, we need to ensure that there are sufficient protections from legal challenge for faith groups who do not wish to host partnerships on their premises. We are confident that faith groups will not be forced to host civil partnership registrations on their premises if they do not wish to do so.
Lord Alton of Liverpool
My Lords, before the noble Lord leaves the very important statement that he made, both in his letter and again to the House today, I notice that it says that if a successful legal challenge were brought, the Government would carry out a review. Will he bear in mind what the right reverend Prelate the Bishop of Blackburn said earlier, and the point I raised with the noble Lord, Lord Lester, about vexatious litigation? It might not be successful litigation, but it would nevertheless be litigation, and it could involve people in considerable expenditure, as the noble and learned Lord, Lord Mackay of Clashfern, said earlier. In those circumstances, will the Minister given an undertaking to the House that the issue will be generally kept under review without having to wait for litigation? Will there be, if necessary—although most of us accept that it is highly improbable—an amendment to the Equality Act? That is, if those circumstances were to occur, would legislation be brought forward along the lines suggested by the noble and learned Lord?
Lord Henley
I hope that this debate has brought a considerable degree of clarity to this issue. I think that it is now generally clear—most people understand the legal aspect—that there is no doubt about this matter. However, as the noble Lord has raised this point, which was also raised by the noble and learned Baroness, Lady Butler-Sloss, we will obviously keep all matters under review, and if we saw a problem, we could act. I do not think that that is likely. Particularly after what we have heard in this debate, it would be a very vexatious litigant who tried to bring such an action, and I do not think they would have much chance in the courts.
I hope that I have spoken briefly and with some clarity about what the Government’s intentions are. I repeat again, this measure is entirely permissive; it is not designed to go any further. On that I am at one with the Opposition Front Bench, with the noble Lord, Lord Alli, and with a large number of the legal luminaries who have spoken. I hope that my noble friend will feel able, therefore, to withdraw her amendment.
Lord Mackay of Clashfern
Is my noble friend speaking on behalf of the Government at this Dispatch Box, having regard to the case to which he referred about reference to statements? Is he saying on behalf of the Government that this Act, in Section 202, refers to the 2004 Act and to the Equality Act 2010? Is it the position of the Government that this includes the Act of 2010?
Lord Henley
My Lords, I am making, as my noble and learned friend put it, a considered ministerial Statement from the Dispatch Box, in line with the case he referred to, Pepper v Hart. Yes, I believe that this Act covers both the 2004 Act and the Equality Act 2010. As I said earlier, it would be very odd if the Equality Act was considered to have spoken inconsistently. However, I can give my noble and learned friend the assurance that he seeks.
Lord Tebbit
Could my noble friend address the point I raised earlier? In the event that the permissive nature of this is overridden by a judgment from a European court of any kind, what action will the Government take then?
Lord Henley
My Lords, I am not sure which European court my noble friend is referring to. If he is referring to the European Court of Human Rights, we discussed that somewhat earlier in the day. I think that it was the noble and learned Lord, Lord Lloyd of Berwick, who referred to a judgment in a Finnish case in the European Court of Human Rights, and then to the later remarks of the Lord Chief Justice that we must give due weight to the decisions of that court but not necessarily be bound by them. If it was the European Court of Justice, obviously we would have to comply with that, as with other matters, but I do not see quite how it would get involved in these matters.
Baroness O'Cathain
My Lords, I thank everyone who has taken part in this debate. I was very relieved that I was not at the butt-end of accusations of being homophobic, toxic, odious or even old, as I was in some of the letters that I got. I know I am old, but I do not like it to be said pejoratively.
I have listened intently. I remember—this is a flashback to my childhood—that when my parents asked me what I wanted to do, I said I wanted to become a lawyer. Thank goodness I did not, that is all I can say; it is even more confusing than being an economist.
I have listened particularly to the Minister. I just want him to agree once more, so that my noble and learned friend Lord Mackay has satisfaction. In the 2004 Act no one was in any doubt and yet there was protection for the avoidance of doubt, but there is doubt around the 2010 Act—whatever we think about it, there is doubt out there. If the Minister is saying, in a ministerial Statement from the Dispatch Box, that he is convinced that the protection for the avoidance of doubt in the 2004 Act applies to the 2010 Act, then in view of the opinion around the House I will withdraw my Motion. But I want to make sure that the Minister has the chance to say so.
Lord Henley
My Lords, I confirm again to my noble friend that that is exactly what I said. Section 202 inserts an amendment into the 2004 Act but it is equally true that it is in the Equality Act; it is a vehicle for this. It is proper to say that it is Parliament’s intention that that is the position. I do not think I can be any clearer than that.
Lord Lester of Herne Hill
My Lords, since I raised the matter of Pepper v Hart—
Protection of Freedoms Bill
Lord Henley Excerpts(12 years, 5 months ago)
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The Earl of Erroll
My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.
The Minister of State, Home Office (Lord Henley)
My Lords, I think I can intervene now. I apologise if I digress to mention metal thefts, civil partnerships or intercepts as evidence, but even by a quarter past two it has already been something of a long day. My noble friend Lady Hamwee talked about the need for hot towels to understand what is going on behind some of the amendments tabled by my noble friend Lord Phillips. I am grateful to discover that it will be hot towels only for my noble and Liberal friends, so I shall get on with an explanation of what I think my noble friend Lord Phillips is getting at in his amendments and what the Government’s response is. That should be useful to noble Lords. What I think these amendments laudably seek to do is provide a degree of clarity in what is obviously a complex area, but I hope I can persuade him that the existing drafting of Clause 37 and of Sections 22 and 23 of RIPA is appropriate.
Lord Henley
I was just about to get on to Amendments 116 and 119. I think my noble friend accidentally referred to Amendment 116 as Amendment 115. For the sake of the record, I will put that right.
It might help if I first explain the differences between authorisations and notices. Sections 22(3), (3B) and (3F) refer to authorisations. These allow a designated person in a public authority to authorise another person in that authority to take steps to obtain communications data. This will be relevant where the authority rather than the service provider needs to take those steps. Section 22(4) refers to notices. This relates to notices given to a service provider directly. In seeking to redraft subsections (1) and (3) of new Section 23A of RIPA, these amendments are no doubt designed to make it clear that the requirement for magistrate approval applies to the renewals of authorisation notices to obtain communications data as well as their original grant. This is fully the intent of the clause. However, we believe that the text as drafted is correct in law on this point. Section 22 of RIPA applies to renewal, not Section 23—as provided for by the proposed amendment. Where a designated person seeks to grant or renew an authorisation, they do so under Section 22. Section 23 does not provide a separate basis for renewal. It merely makes provision about the form of an authorisation or notice and its duration.
It is, of course, right that Sections 23(5) and (6) refer expressly to renewal but the effect of the provisions is to ensure two things. First, they will make it clear that, where a designated person for a public authority intends to renew an authorisation under Section 22, they can do so at any time before the expiry of the authorisation—which will last for one month. Secondly, it will mean that, where the authorisation is renewed, the requirements of Section 23 in relation to the form of that authorisation are complied with. Sections 23(5) and (6) do not provide a basis for renewal and the clause as currently drafted, which refers to the granting and renewing of an authorisation under Section 22, is correct.
Amendments 117 and 118 seek to omit the words in brackets in new Section 32A(2) of RIPA. On the proposed omission of “if any”, these words cater for the fact that a local authority application for a notice or authorisation to obtain communications data may be refused. This is not merely a rubber-stamping exercise. That is an important point and it is brought out expressly by the drafting of the clause. On the proposed omission of “as the case may be”, these words make it clear that the provisions apply both to notices and authorisations to obtain communications data. We hope that it is a helpful steer to the reader. RIPA has sometimes been accused of being complicated and impenetrable—my noble friend said something similar. The drafting provides clarity on that.
Finally, Amendment 122 seeks to amend Sections 22 and 23 of RIPA, which relate to obtaining and disclosing communications data and the form and duration of authorisations.
The addition of the word “reasonably” into subsections (1) and (5) of Section 22 is not required and could cause confusion elsewhere. Reasonableness is already implicit within RIPA because it is expressly inherent in the Article 8 test of necessity and proportionality. Making an explicit reference to reasonableness in the context of Section 22 would cast doubt as to the test to be applied elsewhere in RIPA, where there are similar formulations.
Lord Phillips of Sudbury
My Lords, I am grateful for the Minister’s reply. I let his officials have a copy of what I was going to say an hour or so in advance of this Committee so that it was not a complete surprise to them all. I shall need a little time to absorb the response. I have to be frank and say that on a number of issues, at first flush, I was not convinced. But the best way forward, if the Minister agrees, is that we have a conflab outside this Chamber on any points that have residual concern. I was not intending to divide the House at this stage in any event but no doubt he will afford me access to his Bill team so that we can sort anything out if it needs it.
Lord Henley
My Lords, it would be right that we should sit down and discuss this, and I would welcome a chance to arrange a meeting with my noble friend. It is technical and difficult stuff. My noble friend Lady Hamwee referred to it as hot-towel-around-the-head stuff. I think it might be almost more cold-towel-and-a-lot-of-black-coffee stuff. But whatever happens, we have to discuss it and we will certainly try to do so.
Lord Phillips of Sudbury
I am grateful to the Minister, although I would prefer whisky. I certainly accept what he said and I beg leave to withdraw the amendment.
Lord Rosser
My Lords, this amendment is a response to calls from both the Director of Public Prosecutions and the former Assistant Commissioner of the Metropolitan Police to clarify the law in respect of the illegal interception of voicemail messages. The amendment seeks to clarify the definition of interception in the context of Section 1 of RIPA to mean that those who access the voicemail of individuals without their knowledge or consent will be liable to prosecution, even if the intended recipient has already accessed the messages.
In his evidence to the Select Committee on Culture, Media and Sport on 24 March this year, the then acting Assistant Commissioner of the Metropolitan Police, John Yates, stated that the reason he had initially advised the committee in September 2010 that only 10 to 12 victims could have cases brought for them in relation to alleged phone hacking was the,
“very prescriptive definition of Section 1 of the Regulation of Investigatory Powers Act”,
which deals with the illegal interception of voicemail messages. Of course, we now know that there are potentially thousands of cases where voicemail messages have been accessed and listened to without authorisation. However, to prove the offence of interception under the section, Mr Yates maintained that the prosecution had to show that a voicemail message had been intercepted prior to it being listened to by the intended recipient. In response to the evidence given by Mr Yates, the Director of Public Prosecutions wrote to the Select Committee on Culture, Media and Sport in April of this year to clarify the opinion of the Crown Prosecution Service on this issue. He told the committee that in 2006 in relation to the investigation of, I think, Messrs Goodman and Mulcaire, the CPS initially advised the Met that:
“The offences under Section 1 of RIPA would, as far as I can see, only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this”.
Furthermore, the DPP stated that the view of the CPS at the time was that it regarded the question of whether or not the unauthorised accessing of a voicemail message after the recipient has collected the message is a RIPA offence as a difficult legal issue which had not been tested or authoritatively determined; that there were tenable arguments either way; that the observations made by the noble and learned Lord, Lord Woolf, in 2002 of NTL Group Limited versus Ipswich Crown Court pointed to a narrow view; and that it approached the prosecution on the basis that if the issue of interpretation arose, it could be preferable to proceed on a narrow interpretation, thereby avoiding the necessity of having a contested trial.
The letter from the DPP in April noted the following points. First, no concluded or definitive view was ever reached, and from the outset the head of the CPS special crime division indicated that the interpretation is,
“very much untested and further consideration will need to be given to this”.
Secondly, that,
“the prosecution was never required to, nor did it, articulate a definitive view of the law … in the case of Messers Goodman and Mulcaire”.
Thirdly, in his view,
“the legal advice given by the CPS to the Metropolitan Police on the interpretation of the relevant offences did not limit the scope and extent of the criminal investigation”.
That final point is based on the advice given by the CPS to the Met that the case could have been prosecuted under other offences, including the Computer Misuse Act. However, the Met was apparently reluctant to bring a prosecution under that Act. It has been suggested that that was for tactical reasons, but I do not know whether that was the case. Whatever the situation may be, it does not detract from the need to clarify the law on arguably the most relevant offence under RIPA. We believe that a clarification in the law is needed to make it clear that an offence of illegal interception of voicemail messages applies regardless of whether that message has been listened to by the intended recipient. Our amendment would provide that clarification and I hope that the Minister will take this opportunity to provide such clarification. I beg to move.
Lord Henley
My Lords, the noble Lord, rightly, is looking for a degree of clarification, as suggested in his amendment. I do not think that we need clarification, and it might be helpful if I set out the case.
First, let me be clear that phone tapping or hacking is illegal. As the noble Lord made clear in his opening remarks, it remains illegal—I want to emphasise this—even if the intended recipient has access to that communication. I am aware of some of the concerns and the point was addressed directly by the DPP in the written evidence to the Home Affairs Select Committee in October last year. He stated that his advice to the police and the CPS would be to assume that,
“an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it”.
The recent Home Affairs Select Committee report, following its inquiry into unauthorised tapping or hacking of mobile communications, signified the particular importance of Section 2(7) of RIPA and that not enough attention had been paid to its significance. The committee did not recommend that Section 2(7) be amended. As Members of the Committee will be aware, we also have the Leveson inquiry, which is looking at a number of issues related to phone hacking. The first part of the inquiry, which is already under way, is focusing on the role and conduct of the press. The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers and the way in which management failures have allowed it to happen. The original police investigation and its failings, the issue of corrupt payments to police officers, and the implications of all this for relations between police and the press will also be considered as part of the second part of that inquiry.
As the noble Lord will be aware, there are a number of other inquiries and investigations in hand and the police investigation into allegations of phone hacking continues, which I referred to in the Chamber only the other day in answering a Question. We believe it to be most appropriate, which I think the noble Lord would accept, to await the outcome of these various inquiries to know just what has happened, and so on, and to examine the conclusions before considering any changes to the law in this area. Further, we consider that the meaning of Section 2(7) is clear and that there are sufficient penalties in place to deal with offences of unauthorised interception. I refer the noble Lord back to the advice of the DPP to the CPS prosecutors. I hope that the noble Lord will accept that that deals with his points and that it is probably best to wait for the outcome of all those reports before he, we or anyone goes further.
Lord Rosser
My Lords, I thank the Minister for his response. I am not as convinced as he is that the present legislation is entirely clear because the events to which I referred would suggest that in certain fairly key quarters there appears to be some confusion over the current position. I do not mean confusion as far as the Minister is concerned, but I did refer to the police and the evidence that had been given. I am not entirely surprised that the Minister made reference to inquiries currently being undertaken. If I can take it from what he said, which I am sure I can, if those inquiries suggest that there is any lack of clarity in the present legal position, or even if the inquiry does not think there is a lack of clarity but nevertheless it would be helpful if the wording in the legislation were firmed up so that no one else could be in any doubt, that is the road that the Government will go down to end any confusion there might be on anyone’s part. On the basis that the Minister agrees that that will be the Government’s response—
Lord Henley
I do not know whether the noble Lord wants me to intervene to confirm that that is exactly the case. Obviously, we are awaiting the results of those inquiries, and it would be wrong for us to jump before that. Whatever they recommend will be something that the Government will have to consider with great care.
Baroness Royall of Blaisdon
My Lords, I pay tribute to the noble Lord for his diligence and doggedness on this issue. I find it extremely useful to have a list of primary and secondary legislation and Acts which bear relation to powers of entry. Maybe it is because I am now freed of the shackles of power that I am rather attracted by the notion that a list should be published in a schedule so that people can clearly see it. My one difference with the noble Lord is on his Amendment 136, in which he suggests that the Secretary of State should have a power to amend the list by a negative resolution. While I trust Ministers and would not wish to cast any aspersions on them, some extremely important powers of entry and Acts of Parliament would be cited in the list. It would be proper for any Minister to have to come to the House and be accountable, so I would be in favour of an affirmative rather than negative resolution.
Lord Henley
My Lords, my noble friend Lord Selsdon came to the House in, I think, 1963, as a member of the Independent Unionist Peers. I came somewhat later in 1977, and also joined that group. I was obviously not independent enough as soon after that they were rechristened the Association of Conservative Peers. Obviously, I take note of and am interested in what my noble friend said on these matters. Like the noble Baroness, Lady Royall, I pay tribute to his diligence and doggedness in this matter over the last 48 years—or is it even longer than that? The noble Lord has battled with these matters for a long time.
I was also fascinated to hear what he said about placing things in the Library. That is something that I have said on a number of occasions. I never knew that it was purely the prerogative of Ministers. If that is what my noble friend said then that must be the case.
Baroness O'Neill of Bengarve
My Lords, I have great admiration for what the noble Lord, Lord Selsdon, has done. The number of powers of entry is truly amazing and overwhelming, but I think that we are skirting a much bigger issue, which is the question of the implementation of Article 8 of the European Convention on Human Rights that covers the right to privacy. It is either beautifully observed or perhaps, I fear, widely neglected. I hope that we can take a more systematic view of when and under what circumstances powers of entry are justified. Listing them makes it very plain just how urgent the problem is, but I think that the remedies will have to be on a slightly different scale.
Lord Henley
My Lords, when I referred to the gateway that we talked about, I sought to say that what we are committed to do in the Home Office is to check any new powers as they come in from other departments to make sure that they can be justified before they are introduced. It is easy to introduce something without much further thought, but we are trying to create a form of approach that will allow for a greater degree of caution and care to be used before such powers are introduced.
Lord Selsdon
I am most grateful to the Minister, and maybe the time has come once again to offer the help of the private sector in solving the problem. My two extra amendments take into account the points he raised with me. The preparation of the list means not just the issuing of it but also its availability to people at the right time. I have arranged with Professor Richard Stone at the University of Lincoln, who is rewriting the powers of entry, search and seizure with the Oxford University Press, to co-operate fully, as we have before, with the Government. We might see whether we can arrange a powers-of-entry cloud. This would mean that it would be available on my iPad, on which even now I have the whole of the Home Office Bill along with the updates that the officials themselves have not yet had. I do not know why they use yellow on their website because it is not a good colour. If these things are readily available online and in the Library—
Lord Henley
Perhaps my noble friend will give way. He, like me, is wearing a yellow tie, and he is also wearing a yellow shirt. Perhaps it is a good coalition colour to be wearing on an occasion like this. No doubt the Home Office works in the same spirit.
Lord Selsdon
It was part of the coalition activities. This is an area that will not go away. What I am trying to say to the Minister and his team is that there are a lot of people out there who would be willing to help. There are methods of presentation and of access, but not least there is the interpretation. Although I will not read it out today, I refer noble Lords to Lord Hailsham—my noble friend Lord Marlesford may have mentioned that—because this issue was raised by Lord Hailsham 56 or more years ago. It is an important one. Of course I will not press the amendment now, but I will arrange to meet my noble friend and see what I can do to help him and his Bill team. I beg leave to withdraw the amendment.
Lord Henley
My Lords, I am not unsympathetic to the sentiments underlying the amendments in this group and I am not unsympathetic to the points made by the noble and learned Lord, Lord Scott of Foscote. Clauses 39 to 53 in Chapter 1 of Part 3 of the Bill go in the direction the noble and learned Lord would like to go. Obviously they do not go far enough as he would like to delete from Clause 39 “may” and replace it with “shall”.
I hope I will be able to explain this in response to my noble friend’s amendment but I think that might be going a bit too far. My noble friend would introduce a presumption that anyone seeking to exercise a power of entry may only do so either with the consent of the premises owner, which I think is Amendment 134, or under the authority of a warrant. That approach might be appropriate in many cases and that is why we want to look at all the powers we have and are asking all departments to do so. However, I am not persuaded that it would be right to adopt it as a blanket approach. One size does not fit all.
My previous job before the Home Office was in Defra. There, obviously animal disease was a matter of great concern to us. I also remember, as a farmer in the north of England not far from Longtown, the 2001 outbreak of foot and mouth. Obviously there is a need for the authorities, if we can put it like that, to be able to go into premises very rapidly, sometimes without a warrant—however rapidly the noble and learned Lord thinks that we can get a warrant. In the case of foot and mouth, speed was of the essence. It is possible that one of the reasons that the 2001 outbreak was not dealt with as effectively as it might have been was because there was initially a degree of inertia and a lack of speed.
The Committee will be aware that there are a very large number of powers of entry and we discussed that in the previous amendment. We want to make sure that we have appropriate lists of them to make life easier for individuals. However, when we carry out our review into all the powers as provided for by Clause 40(2) some will obviously prove necessary, some will require strengthening with further safeguards and some we will seek to abolish. That is why the word “may” might be more appropriate than the “shall” the noble and learned Lord is suggesting.
Lord Scott of Foscote
I was not suggesting that “shall” should apply to all the items. I was suggesting that it should apply to Clause 40(2)(d)—“may” could be kept for the rest.
Lord Henley
I take the noble and learned Lord’s point. He has not actually got an amendment down on this at the moment so we have not been thinking about that precisely but certainly we would consider having a look at that if the noble and learned Lord wants to come back to it on Report. I can see that Clause 40(2)(d) is where he wants the “shall” to come in.
The very simple point I am making is that not all powers of entry can be treated the same. Some powers of entry relate to the investigation of criminal offences or to a breach of regulation, but others do not. I would argue that it would be counter-productive in this instance, and indeed might prove unworkable in the case of powers of entry derived from European legislation, to seek to overlay a blanket requirement along the lines proposed in these amendments.
That is not to say that these types of safeguard do not have a place, and that is why we support the wider use of warrants whenever powers of entry are exercised. We also support the principle of consent in most cases—although obviously there are cases where consent would not be appropriate—and the removal of a power to enter people’s homes unless it is fully justified and accompanied by a magistrate’s warrant. I am trying to indicate that we need to consider the most appropriate approach on a case by case basis, and I think that Clause 40 allows us to do just that. The list of possible safeguards set out in subsection (2) includes a large number set out in paragraphs (a) to (k). These include a requirement for judicial authorisation and a requirement to give notice of the exercise of a power of entry and so on. I could read through the entire list. We consider that a targeted approach appears to be the preferable course of action on this occasion. The safeguards that apply best in most cases are specific to the type of investigation or inspection required and to the legislation conferring particular powers of entry.
I do not know if my noble friend Lord Selsdon wants me to go on to deal with his amendment or whether he is going to speak to it.
Lord Henley
I shall therefore give way. I thought that it was part of this grouping. However, my noble friend has not yet spoken so I shall listen to him.
Lord Selsdon
I shall speak simply on the matter of the code of conduct. The noble and learned Lord, Lord Scott of Foscote, pointed out that my amendment had certain faults in it because it should have said “either/or” and not all at once. What one had done before in discussion was to determine which factors should go into the code of conduct. My noble friend the Minister has rightly said that he will produce a very reasonable one. However, a difficulty is that each of the different pieces of primary and secondary legislation requires different consideration. For example, in the first 12 Bills listed on the Home Office website, there are 36 powers of entry relating to animals. They need a different method of handling when you enter a property. I want just to point out that I am on the same side as the Minister with regard to codes of practice or codes of conduct, but the noble and learned Lord pointed out that I should have put in “either/or” instead of the whole lot. That was my own typographical error.
Lord Henley
I am grateful to my noble friend for that explanation. I could not accept his code of conduct, but he will see what we have set out in Clauses 47, 48, 49, 50, 51 and even down to Clause 53 which sets out a corresponding code in relation to Welsh devolved powers of entry. It might be that my noble friend wants to have further discussions about that. However, what we have set out in terms of being able to alter or replace the code should be sufficiently wide and able to deal with difficult matters such as a code of conduct in relation either to animals or to other matters. On glancing through my noble friend’s code, I thought that it was what might be described as over-prescriptive. It is better to leave it to the route that we are setting out in the Bill.
Baroness Randerson
Perhaps I may point out that the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly are busily creating their own powers of entry. Once this Bill is passed, as I hope very much it will be, the safeguards in it will apply to the powers of entry under UK legislation but not to legislation passed by the devolved Administrations. Have there been any discussions with the devolved Administrations about applying the same standards to their legislation?
Lord Henley
One of the joys of devolution is that it allows different parts of the United Kingdom to do different things. One might or might not approve of the different things they do, and they might create tensions in certain border areas. It will entirely depend on what powers each of the three devolved countries have as to what they do. Obviously we will continue to discuss matters with colleagues, as we do on all matters that go across borders. However, in the end it has to be a matter for them. It might be that differences will appear in due course, but once you have let the genie out of the bottle, that is what happens.
Baroness O'Neill of Bengarve
Since there will be conversations, it might be important to think about the way in which this code of conduct can be understood by citizens whose premises are to be entered, or not entered, in that this is very much addressing the official who seeks to enter, and what he or she may or may not do. It is very important to have something very simple that the citizen can actually grasp and say, “No, you have no warrant. I do not agree. This is not an emergency, so not now”.
Lord Henley
I well understand what the noble Baroness is saying. As we all know, statute is not written in a language that most of us find that easy to understand—although I have no doubt the noble and learned Lord finds it easy to understand. Codes of conduct are obviously written in a manner that we hope will be understandable by all those who have to either make use of them or who will be affected by them. I am sure that as codes of conduct are drawn up, the strictures the noble Baroness has mentioned will be taken into account.
Lord Marlesford
My Lords, I thank the noble and learned Lord, Lord Scott, for his very powerful support, which I think the Government should take very considerable note of. The Minister gave no indication of any real sympathy with this. The examples he gave from the Defra thing of course are covered extremely well by my second amendment, which says quite clearly that where the purpose of the exercise of the power of entry would be in any way frustrated by having to get agreement, or even a warrant, that that could be justified under the present situation.
As the noble Earl, Lord Erroll, said, this is a very important subject, and he made some very useful points. We shall certainly return to it on Report. I believe that there will be widespread support on all sides of your Lordships’ House for what we are trying to do. If there is any chance of having constructive conversations with the Home Office—which I rather doubt—I would be happy to have such discussions. However, at the moment I absolutely reject the idea that this one-by-one study in any way replaces what I want, which is a much more constrained, sensible and proper use of powers of entry. Although in the mean time I have to withdraw the amendments, we shall be returning in full force to them on Report.
Baroness Royall of Blaisdon
My Lords, I support the amendment tabled by the noble Lord, Lord Armstrong, and other members of the Joint Committee. It is an eminently sensible amendment because the Government have rightly recognised the practical impossibility in certain circumstances of emergency legislation, hence the introduction of Clause 58. However, as the noble Lord, Lord Armstrong, said, there remain real concerns over the workability of the Government’s proposal.
We believe that there is a serious risk of jeopardising a fair trial if Parliament is to be provided with enough information to properly scrutinise the necessity of the use. It seems as though it would be practically unworkable because, as the noble Lord said in his introductory statement, there would be a need to introduce and pass legislation with too short a timeframe to enable proper scrutiny and accountability. The scrutiny of legislation within such a short deadline would appear to be a dangerous way to legislate because the time pressures and state of emergency would undermine proper and dispassionate scrutiny of the legislation. By prescribing the use of an emergency power too tightly, within the most serious situations, the sheer use of the power would indicate to any future jury the unusual gravity of the case and therefore prejudice its views. We support the amendment moved by the noble Lord, Lord Armstrong.
Lord Henley
My Lords, I am grateful to the noble Lord for his detailed consideration of this clause, and I thank him for his letter of 16 November in which he provided a detailed explanation of the reasons behind his amendment.
The amendment would extend the circumstances in which an order could be made under Clause 58 to increase the maximum period of pre-charge detention in relation to terrorist suspects from 14 to 28 days. We have made it clear that we believe that the maximum period for pre-charge detention for terrorist suspects should in the majority of circumstances be 14 days. Given that no suspects have been held for longer than 14 days since 2007, it is evident that such a long period is not routinely required.
Lord Henley
“(6ZA) As soon as practicable after making an order under paragraph 38 of Schedule 8, the Secretary of State must lay a copy of the order before each House of Parliament.”
Lord Henley
Lord Henley
My Lords, I wonder whether this is a convenient moment for the Committee to adjourn until Tuesday, 10 January at 3.30 pm. I wish the Committee a very happy Christmas.