Electricity and Gas (Carbon Emissions and Community Energy Saving) (Amendment) Order 2011

Lord Henley Excerpts

Wednesday 14th December 2011 Grand Committee

[Lord Henley]

They are.

[Lord Marland]

I thank my noble friend for that very kind interjection. I think that the noble Lords, Lord Henley and Lord Hunt, are here for fun and games. We might stay and watch them later.

Does it reduce carbon? Obviously, that is not the intent of what we are doing here. The intent is to get competition into the market. It will not really change the carbon aspect of things, which is not central to the process. In consultation, we took evidence and more than 80 per cent of the people consulted were for these changes, so there was overwhelming approval. I hope that that deals with most of the questions that I have been asked. On that basis, I ask the Committee to support this order.

Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011

Lord Henley Excerpts

Wednesday 14th December 2011 Grand Committee

Moved By

[Lord Henley]

That the Grand Committee do report the House that it has considered the Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011.

Relevant document: 33rd Report from the Joint Committee on Statutory Instruments.

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

My Lords, in speaking to the Elected Local Policing Body (Complaints and Misconduct) Regulations 2011, I shall speak also to the Local Policing Bodies (Consequential Amendments) Regulations 2011. The first set of regulations make consequential amendments to various existing statutory instruments arising from the replacement of police authorities by PCCs and the Mayor’s Office for Policing and Crime, and from the fact that chief officers of police will employ police staff in the future. The second set of regulations sets out the way in which complaints against police and crime commissioners, the mayor’s office and their deputies will be handled.

I will come to the regulations in a moment but I want to start by setting the context and talking about PCCs more generally. The Committee will recall that the Government’s plans for police and crime commissioners are set out in the Police Reform and Social Responsibility Act 2011. There will be 41 elected PCCs in England and Wales who will take office on 22 November 2012. Ahead of that we expect to have a live PCC model up and running in London when the Mayor’s Office for Policing and Crime comes into effect in January.

There has been vigorous discussion and full scrutiny of our plan for PCCs. There has been a public consultation and, as the noble Lord will remember, a lengthy debate in Parliament. The Government listened to concerns. We strengthened the checks and balances on PCCs. We have taken every step to ensure that the British model of impartial policing, which we all prize, is preserved, and Parliament has now spoken.

I now turn to the secondary legislation that is needed to bring about these changes and the subject matter of this debate today; namely the 2011 consequential amendments regulations and the complaints and misconduct regulations. I will take them in turn, starting with the consequential amendments regulations. The regulations make consequential amendments to various existing statutory instruments arising from the replacement of police authorities by PCCs and the Mayor’s Office for Policing and Crime, and from the fact that chief officers of police will employ police staff in the future.

The Police Reform and Social Responsibility Act makes significant changes to the governance arrangements for policing in England and Wales, with the exception of the City of London police area. The Act abolishes the police authorities responsible for maintaining police forces outside London and replaces them with directly elected PCCs. The Act also abolishes the Metropolitan Police Authority and replaces it with the Mayor’s Office for Policing and Crime, an office held by the Mayor of London. In the City of London, the Common Council retains its role as the police authority, and the status of the commissioner of the City of London Police remains unchanged. The Act refers to PCCs, the Mayor’s Office for Policing and Crime and the Common Council collectively as “local policing bodies”.

The consequential regulations in question are not intended to change the substantive effect of the various instruments being amended, except for the purposes of reflecting the changes made by the Police Reform and Social Responsibility Act 2011. Specifically, the regulations will amend the Police and Criminal Evidence Act 1984 (Drug Testing of Persons in Police Detention) (Prescribed Persons) Regulations 2001 to ensure that members of police staff continue to be prescribed as persons permitted to take samples from suspects in police detention for the purposes of drug testing. The amendments to the Docking of Working Dogs’ Tails (England) Regulations 2007 allow members of police staff to continue to present police dogs for certification as working dogs for the purposes of the working dogs’ exemption to the prohibition on the docking of dogs’ tails. Finally, the changes to the Local Authorities (Alcohol Disorder Zones) Regulations 2008 allow for costs in relation to members of police staff designated as community support officers to continue to be included in charges levied in relation to alcohol disorder zones. The costs incurred in relation to the staff and police officers that are currently payable to the police authority will be payable to the local policing body.

Section 6(15) of the Animal Welfare Act 2006 requires the Secretary of State to have consulted those persons appearing to her to represent interests with which these regulations are concerned as she considers appropriate. As the amendments made to the Docking of Working Dogs’ Tails (England) Regulations 2007, to which that requirement relates, concern only police dogs, and the only amendments are for the purpose of replacing references to police authorities, the Secretary of State considered it appropriate to consult only the Association of Police Authorities and the Association of Chief Police Officers. These bodies had no comments to make on the instrument.

Sections 15 to 20 of the Violent Crime Reduction Act 2006, under which the Local Authorities (Alcohol Disorder Zones) Regulations 2008 were made, are repealed by Section 140 of the Police Reform and Social Responsibility Act 2011. However, the Government do not intend to bring Section 140 into force until later in 2012.

As the amendments made to existing instruments are limited, the Home Secretary has no intention to issue guidance or review the impact of these changes. The intention is that these regulations will come into force in January 2012 in the Metropolitan Police Service area of London and in the following November for the rest of the country.

I now turn to the Elected Local Policing Body (Complaints and Misconduct) Regulations. It is expected that PCCs and their deputies will uphold the highest standards of public office. However, in the event that there is a complaint or an allegation against one of them, it is important that this is handled effectively to ensure that public confidence in policing is maintained. The Police Reform and Social Responsibility Act 2011 therefore provides for regulations to set out the way in which complaints or conduct matters about elected local policing bodies will be handled. The Act requires the regulations to provide for allegations of criminal behaviour to be referred to the Independent Police Complaints Commission, and allegations of non-criminal behaviour to be resolved informally by police and crime panels.

The reason for requiring criminal allegations to be referred to the IPCC is that otherwise the office holder may be, or may be perceived to be, at an advantage in relation to the police investigation because of his or her responsibilities for holding their police force to account. The IPCC has extensive experience of handling sensitive, complex and high profile cases and will provide independent scrutiny of the handling and investigation of allegations of criminal behaviour in this context. The regulations set out that criminal allegations will have to be passed to the IPCC quickly and give the IPCC a call-in power—a power to require that allegations against the office holder are referred to it. The regulations also give the IPCC strong powers to investigate criminal allegations which are similar to those for investigating police forces, and require the IPCC to publish a report following its investigation.

Where a complaint is not serious enough to require investigation by or under the management of the IPCC, the regulations provide for it to be resolved informally by police and crime panels. The arrangements for PCP resolution of non-criminal allegations are intended to be light touch and locally determined, although it is intended that the Home Secretary will give some guidance in this area. Panels will be able to delegate the initial handling but not the resolution of complaints to the IPCC’s monitoring officer. We expect that the officer will wish to keep abreast of the handling of complaints through regular reports. The regulations allow non-criminal complaints against the mayor, as the Mayor’s Office for Policing and Crime, or the deputy mayor for policing and crime, if he or she is a member of the London Assembly, to be dealt with in the same way as complaints about the Mayor of London or the London Assembly. This is intended to avoid any potential confusion arising from the MOPC being subject to two different standards of procedures.

The regulations have been developed by the Home Office with some of the main delivery partners who will be affected by the proposals, as set out in the regulations. There has also been a public consultation process which received 31 responses. The Government have considered those responses very carefully and have made some important changes as a result. The main changes that we have made are designed to improve co-ordination of the handling of complaints at local level and to keep any bureaucracy associated with administering the system to an absolute minimum. The intention is that these regulations will come into force in January and will have effect from that date in the Metropolitan Police Service area. They will have effect from November 2012 in the rest of England and Wales when the first PCCs take office.

I said at the beginning that Parliament has now spoken in relation to the PCC model, and the Government’s focus is now on making this model a reality. The regulations before the Committee are an important part of the legislative jigsaw that will make this happen and I commend them to the House. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am sure that we are all very grateful to the noble Lord, Lord Henley, for his explanation of the two statutory instruments that we are debating together this afternoon. As he rightly said, it is only a few weeks ago since we finished proceedings on the Government’s misguided proposals to establish elected police commissioners, but the Opposition will take a constructive approach to these regulations and the many others that are due to come to your Lordships’ House over the next few weeks and months.

As the noble Lord suggested, the regulations under consideration have been developed to a very tight timetable to enable London to transfer early from the current Metropolitan Police Authority to the new Mayor’s Office for Policing and Crime. The problem is that, because of the rush, we are not being allowed sufficient time or opportunity to explore the implications of the regulations for the rest of England and Wales before we deal with the issue in London. Can the noble Lord give me some idea of the timetable for all the other regulations that will be produced? There is some hint that there is a less than cohesive approach to doing this. For instance, while a shadow strategic policing requirement and protocol have been laid, the finance code has not—unless that has been done very recently. That makes it difficult to understand the balance of powers between the chief officer, the PCC and the panel because we do not have a complete picture.

Similarly the regulations on PCC complaints have been laid but the regulations on panels have not. Again, that makes it difficult to understand how the complaints process will work, for instance, in relation to the powers of the panel to suspend PCCs. It would be helpful if the noble Lord, either here or perhaps in correspondence, could set out the programme that the department is working to so that Parliament can consider the many statutory instruments that will have to be laid.

There are three matters missing from the regulations that I wish to put to the noble Lord. The first is the absence of any code of conduct or other means of defining what acceptable behaviour is and is not in non-criminal complaints that are subject to informal resolution. The second is the absence of any sanctions or similar powers for the panel in dealing with PCCs that misbehaved. The third is the absence of any provisions dealing with powers of the panel to suspend PCCs or the process that it should follow. I should be grateful if the noble Lord would comment on that.

I have, of course, discussed this with the Association of Police Authorities, which is worried about the lack of clarity with regard to both acceptable standards of behaviour and the panel’s power in relation to informal resolution. That might result in complainants believing that it is better to frame their complaints in criminal terms in order to ensure that they are dealt with satisfactorily. The example that has been given to me is rude behaviour by the PCC, and we have to reflect that this is a political officeholder. Rude behaviour is not unknown from such political office holders—not, of course, the noble Lord himself, who is always an example of chivalry, gentleness and kindness, but there are politicians who do not have the noble Lord’s high standards.

Taking the example of rude behaviour, the risk for the APA is that this might be framed as harassment, conflict of interest or fraud in order to ensure that it is dealt with by the IPCC, whose role is much clearer under these regulations, and that there is a proper resolution with meaningful sanctions, in contrast to it being dealt with under informal resolution. This is an important point on which the noble Lord might be able to reassure me. Clearly, however dubious I am about the elected police commissioners, one does not want a lot of complaints being made in an unscrupulous way, which would actually inhibit the police and crime commissioners in the course of their duty. I would certainly be worried if there was a temptation by complainants to, in a sense, upgrade their complaint in order for it to be dealt with by the IPCC because there is a lack of clarity about how the informal resolution process might work.

We then come to the issue of what, if anything, a panel can do under the informal resolution proposal to ensure that a PCC makes reparation for bad behaviour. If the panel has no powers in that respect, what happens when a police and crime commissioner rejects a means of reparation that the panel has suggested? What recourse does a complainant then have to ensure that the matter is resolved to his or her satisfaction? Again, I put it to the noble Lord that, if the complainant is dissatisfied, one of their options might be to have recourse to the media. The risk of that, I suppose, is that publicity will have an adverse impact on public trust in policing.

The noble Lord will be aware that one of my concerns about the whole notion of elected police commissioners is that it will reduce public confidence. Clearly we can argue about that, and I am very tempted to invite the noble Lord to have another debate about the principle, but I will not do that. However, Parliament having enacted the legislation, it is important that we work together to make it as effective as possible. I am concerned that, if the public do not have confidence in the informal resolution process, as I have said, either they will upgrade complaints in the future or the process will be discredited, and you may well find that the position of the PCC is also discredited. So I think that this is worth looking at.

Some other, rather more technical issues have been raised. Is there not a need for regulations to state explicitly that a force cannot be asked to undertake the investigation of a PCC if he or she is the PCC for that force or connected to that force through collaboration, agreement or close association? It is probably implicit in paragraph 19(3)(b) but would there be argument over how “impartially” should be interpreted?

I understand the logic of appointing the PCC’s chief executive as monitoring officer to the panel—covered in paragraph 7—to achieve national consistency, particularly in Wales where panels will not be part of local government and so will not have automatic access to monitoring officers in local authorities. Is there a risk of putting that chief executive in a difficult situation? Remember the concept of corporate sole means that the employer of the chief executive is the PCC himself or herself against whom a complaint is being made. Is there not a risk that the monitoring officer will not be able to effectively carry out that duty?

The panels will be asked to judge whether a complaint is serious or not. I assume that means that they will look to the monitoring officer for advice. Again, I point out to the noble Lord that there will be a delicate relationship between the role of the monitoring officer’s chief executive and the PCC who is their direct and only sole employer. It is rather different in corporate set-ups where the company secretary or board secretary would probably carry out that role. It is rather different if it is the chief executive. Might the Government be prepared to look at that, in terms of advice on how it might work in practice?

Paragraph 15(3)(a) raises some concerns. Complaints brought by employees to the PCC cannot be dealt with through these regulations where they concern a PCC’s conduct only towards his or her staff. I well understand that there needs to be provision within employment procedures for handling much of this through established grievance procedures but might there be a possibility that that will not address the situation where an employee is accusing, say, a PCC of a criminal complaint such as harassment? What, for instance, would happen in the case of alleged harassment?

What about joint complaints to the chief constable and deputy or assistant chief constable? With the chief constable becoming the appropriate authority for chief officer complaints, there is concern among chief authorities about the potential situation where a joint complaint has been made against the chief constable and someone in the chief officer team. This could result in a chief constable effectively investigating their own complaint. That might strike at public confidence. The question here is whether that should then give the PCC locus in relation to any less senior officer. I would be grateful for some clarification on that.

Are there enough checks and balances around the PCC’s ability to dismiss the chief officer? Of course, we have discussed this in our debate on the Bill. It is worth making the point that PCCs will have to take account of general law considerations when exercising their powers to dismiss a chief constable. It is not a matter for the regulations but it might be one for the guidance that I hope will be given to PCCs on this matter. Indeed, I would strongly advise the Minister’s department to look seriously at the advice and training or development to be given to PCCs on these matters. On that, I assume that there will be some development programmes for the newly elected PCCs. I would certainly put that proposal forward to be considered.

Turning to the fees regulations, these look straightforward. The opportunity to debate the issue of working dogs’ tails with the noble Lord, with his vast experience of such matters, and with his fellow Defra Ministers from past years would be invigorating, but I shall desist. However, I want to ask him about the financial code. A draft code has clearly been circulated round the usual bodies that comment on police matters. My understanding is that a final agreed version is not yet available, but that the work on the drafting has identified a number of challenges. The real issue here is the introduction of two corporates sole, the chief constable and the police and crime commissioner. The audit and all financial matters are unduly and unnecessarily complicated because of that structure. If there is any information that the noble Lord could give me, I would be grateful.

[Baroness Hamwee]

Like the noble Lord, Lord Hunt, I resist entering into a debate on working dogs’ tails, although it was the very point that I marked when I first read the regulations. I will not repeat questions that he asked that arise from concerns expressed by the Association of Police Authorities, save about a couple of matters, one of which is to ask about updated information on what I would describe as interlocking regulations; they may not formally interlock, but in practical terms they will.

The noble Lord, Lord Hunt, talked about politics being played with in complaints. It is not always the subject of a complaint who has played politics; quite often the complainant uses procedures to play politics.

It is not directly a subject of the statutory instruments, but closely related is the proposed funding of police and crime panels. I have heard concerns that the funding will be very low indeed, only enough for one member of staff and perhaps four meetings a year. These regulations are, one hopes, only a small part of the remit of the police and crime panels, which need to be funded—not extravagantly, but adequately and appropriately. The legislation gives them a wider remit than just complaints.

Thinking about that made me wonder whether that was why, in the consultation process, it was proposed that the police and crime panel should be able to delegate to the chief executive of the police and crime commissioner; the noble Lord, Lord Hunt, has already referred to that. I am a bit uneasy, not because of the point about impartiality or objectivity which the APA has raised, but because it seems to confuse the roles of the two entities.

Nor am I immediately convinced about using the local code of conduct in the case of the Mayor’s Office for Policing and Crime and the deputy if the deputy is an Assembly Member, because of their own role in creating that local code. That raises some quite interesting issues. We do not really know where we are with codes and local government yet. I asked one of my colleagues who is still a councillor, and he says that a lot of consultation is going on, but of course these are to be local decisions, even if local authorities adopt the same or a similar standard.

I also want to ask about Regulation 26(4) of the complaints and misconduct regulations; this is a detail, I know.

I was interested that the IPCC will be able to take a view as to whether what is a possible criminal offence is “appropriate”—that is the word—to be considered by the Director of Public Prosecutions. I am sorry that I gave the Minister so very little notice of this matter. As I have said to him, I only managed to look at these regulations at lunchtime. But it seems rather odd to put that power in the hands of the IPCC.

I am interested that the regulations modify Section 22 of the 2002 Act. They seem to do little more than substitute the dramatis personae. As now, the Secretary of State’s approval will be required for commission guidance but, as far as I can see, the power for the Secretary of State herself to issue guidance is new. It may be that the 2011 Act has allowed for this. I would just pause on regulations adding that right for the Secretary of State—not that you could ever stop a Secretary of State issuing guidance—but it might affect the status of the guidance. I do not know whether the Minister will be able to answer my question, which, in effect, is: is there a substantive change brought about in this by the regulations?

[Lord Henley]

My Lords, I am grateful to both noble Lords for making clear that they do not want me to go any further on working dogs’ tails and we will leave that for another day. Perhaps I may start by making a brief reference to my noble friend Lady Browning who, after all, took the Police Reform and Social Responsibility Act through Parliament. She completed that before she stood down, at which point I moved to the Home Office, and we are very grateful to her for all that she did. I think that the noble Lord, Lord Hunt, is mistaken in describing that Act, which is now on the statute book, as being misguided. As I have made clear, it is now a done deal and Parliament, as I have said, has spoken.

The noble Lord also complained about the rush that is taking place. I do not believe that there is a rush. Obviously, things are marginally tighter for London where things happen faster than in the rest of the country, but the rest of the country has until 22 November 2012. I am sure that it—and the Met—will cope. Certainly, we have had no expressions of concern from the Met about that.

The noble Lord also asked about training programmes and what we are going to do to get the PCCs into the right position for when they are set up, which is obviously of very great concern to my right honourable friend, Nick Herbert, the Minister with responsibility for policing and crime. He chairs a transition board, which includes all the key parties, including the chief executives of police authorities. I assure the noble Lord that everyone involved will be included. My right honourable friend has got the message and he is making sure that something effective will be set up and that we have an efficient transition.

The noble Lord was also worried about the number of further instruments that will be needed to set up these regulations. I referred to a jigsaw and this is just a part of it. Not all of what is coming through will be statutory instruments that will need to go through this House, although some will be. In order to get the detail right, it would probably be best if I wrote to the noble Lord to give him a timetable to assist him in this matter.

He also spoke about the absence of any code of conduct, which was also raised by my noble friend Lady Hamwee. I must make absolutely clear that these bodies will be subject, as elected bodies, to all the noble principles by which we abide. That was clearly set out in the protocol. It is also obvious that they will possibly wish to establish certain locally designed meaningful codes of conduct which they think are appropriate for them. Again, that deals with one of the concerns of my noble friend.

The noble Lord was worried about the absence of any sanctions for dealing with police and crime commissioners. What he must remember is that they are democratically elected bodies. Ultimately, that is the sanction. That is why we brought them in and why we think they will do a good job. They will conduct their business in public, so transparency will be a key tool in how the public view them. I think that this will be a great improvement on the system we have at the moment.

[Lord Hunt of Kings Heath]

I am grateful to the noble Lord and I fully understand the point. Indeed, I remember that when the standards board came in in relation to local government, I thought that some of its earlier judgments were actually inhibiting the democratic process. In no way would I want, if you like, to encourage a bureaucratic process that interferes with the relationship between the elected police and crime commissioner and the electorate. The problem I have is that if the public think the informal resolution process is not very effective, they will be tempted to over-egg the pudding and go for a complaint that will have to be considered by the IPCC. If that happens, I worry that many police and crime commissioners are going to be held back because they could get a plethora of complaints like that. It suggests that there is a need to get the balance right and that we must ensure that the informal process has at least some potential for dealing with these matters effectively in order to prevent a kind of upgrading of complaints.

[Lord Henley]

I am glad that the noble Lord used the word “balance” because obviously that is the thing we have to get right. We believe that we have got it right and it is important that we ensure that the processes are in place. There is transparency and the democratic process which I think will be sufficient. If I am wrong in that and if, as the noble Lord puts it, there is a plethora of complaints, we would have to think again. However, I do not believe that that will be the case.

Perhaps I may move on to some of the other queries of the noble Lord. Having listened to the Association of Police Authorities, he worried about rude behaviour on the part of police and crime commissioners themselves, something he said was not unknown among elected politicians. However, I suppose that I am only a partially elected politician and the noble Lord is an appointed politician. We both know that this can and does happen occasionally, but I hope that it does not happen too often. Moreover, I am grateful to the noble Lord for his kind remarks. The important point to remember is that if any rude behaviour went so far as to be illegal, it would be something that the IPCC would have to deal with. If not, it would be something that quite rightly would go back to the police and crime panel itself.

I turn now to some of the more detailed points made by the noble Lord in relation to conflict of interest. I have to make it clear that we would leave it to the IPCC itself to decide if it was appropriate for the home force or another force to deal with the issue. Again, the IPCC is the right body to deal with this. The noble Lord went on to ask whether a police and crime commissioner’s monitoring officer would have a conflict of interest if he was handling a complaint against the PCC. I do not think that there is necessarily a conflict of interest. The police and crime panel can choose to delegate the handling of complaints to the PCC’s monitoring officer, but it does not have to do so.

The monitoring officer will only be responsible for the initial handling of complaints, not for their resolution. In many ways the arrangement reflects current police authority practice, where police authority staff handle complaints against members of staff.

The noble Lord then asked a fairly detailed question about staff complaints under paragraph 15(3)(a), I believe. I refer him to paragraph 15(3)(b). It does not take a complaint by a member of the PCC staff outside the scope of the regulations, and it allows but does not require the PCC to set aside the regulations. The PCC could decide that it would be proper to continue to deal with the complaint—for example, of bullying by the PCC. So that is something that they would be able to deal with.

Then there was the important question from my noble friend Lady Hamwee as to whether the level of resources would be adequate; my noble friend was very worried that they would not be. I can give her an assurance that I believe that they will be both adequate and appropriate. Police and crime panels will be resourced to perform their vital scrutiny function in relation to the PCC—including work and relation complaints. They will also be able to delegate the initial handling of complaints to the PCC’s monitoring officer, which I hope will minimise the administrative burden involved. They will retain responsibility for the informal resolution of complaints but will be able to delegate that task, where necessary, to a single panellist and a subgroup of the panel or any other individual and return matters to the full panel only where required.

Lastly, the noble Lord asked about the financial code. I can give him an assurance that it is being drafted with partners. We are confident that we have worked through the issues and that it will be produced at an appropriate stage. I cannot give a precise date at this point, so I will just say soon, which seems to encompass a vast range of time on this occasion.

I appreciate that I probably will not have dealt with all the more detailed questions, and I am certainly more than happy to write to both my noble friend and the noble Lord in due course to pick up some of those points. I do not believe that these are highly controversial regulations, so at this stage I hope that noble Lords are satisfied.

Motion agreed.

Local Policing Bodies (Consequential Amendments) Regulations 2011

Lord Henley Excerpts

Wednesday 14th December 2011 Grand Committee

Moved By

[Lord Henley]

That the Grand Committee do report the House that it has considered the Local Policing Bodies (Consequential Amendments) Regulations 2011.

Relevant document: 34th Report from the Joint Committee on Statutory Instruments

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

My Lords, I have already spoken to these regulations. I beg to move.

Motion agreed.

Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011

Lord Henley Excerpts

Wednesday 14th December 2011 Grand Committee

Moved By

[Lord Henley]

That the Grand Committee do report the House that it has considered the Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011.

Relevant document: 35th Report from the Joint Committee on Statutory Instruments

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

My Lords, I beg to move that these Regulations be now considered by the Grand Committee.

This is a slightly different subject and I shall set it out in a degree of detail. The Government announced on 23 November that transitional restrictions currently applied in respect of Bulgarian and Romanian nationals’ access to the labour market will be extended to the end of 2013. These regulations achieve that by extending the transitional period during which the current regulations apply until the end of 2013. The amending regulations make no other changes to the current regulations.

The context of the Government’s decision is that the terms of the treaty governing the accession of Bulgaria and Romania to the European Union provide for the existing member states, if they choose, to regulate access to their labour markets by nationals from the Republic of Bulgaria or Romania. This is a permitted derogation from the EU’s free movement rules. Such restrictions may be applied for up to a maximum of seven years, but may only be maintained beyond five years where there is, to use the words in the treaty,

“serious disturbance of the labour market, or the threat thereof”.

As noble Lords will know, the Government are committed to reducing net migration to the United Kingdom. It is of course the case that after 2013, Bulgarian and Romanian nationals will be free to enter the United Kingdom for the purpose of work in the same way as any other EU nationals. The free movement of workers within the EU is a fundamental element of the internal market and it is one that brings benefits to the United Kingdom, not least as an exporter of workers to other member states.

On the other hand, the United Kingdom experienced a very significant influx of workers from the new member states that joined the EU in May 2004. It has been sensible, both in the light of that experience and the changed economic circumstances, to take a more gradualist approach to subsequent accessions. The Government are clear that they will apply transitional restrictions to nationals of countries joining the EU in the future. Similarly, for as long as it remains legally possible and proportionate for the United Kingdom to apply transitional restrictions on Bulgarian and Romanian workers, and there is a compelling labour market case for doing so, it will be prudent for those restrictions to be maintained.

The United Kingdom has applied restrictions on Bulgarian and Romanian nationals’ access to the labour market since those countries joined the EU on 1 January 2007. Whereas nationals of those countries joining the EU in May 2004 were simply required to register their employment under the worker registration scheme, Bulgarian and Romanian nationals have been subject to more substantive restrictions on permission to take employment in the United Kingdom. Their effect is to preserve the level of access to the United Kingdom’s labour market which Bulgarian and Romanian nationals enjoyed when they joined the EU. The standstill clause in the treaty means that we cannot impose controls that are more restrictive than those that were in place on 31 December 2006.

Under the current regulations, Bulgarian and Romanian nationals are required to obtain authorisation from the UK Border Agency before they take employment in the United Kingdom. This will normally require the employer to apply for a work permit in respect of the job in question and such a permit will normally only be issued in respect of skilled employment and where resident labour is unavailable to fill the vacancy. Bulgarian and Romanian workers are also able to obtain authorisation to take lower-skilled employment in the agricultural and food processing sectors under the quota-limited seasonal agricultural workers scheme and sectors based scheme. As the terms of the derogation require, the requirement to obtain work authorisation ceases once a Bulgarian or Romanian worker has completed 12 months’ authorised employment in the United Kingdom. The regulations also provide for the most highly skilled to be granted free access to the labour market from the outset.

The effect of the current restrictions is that a Bulgarian or Romanian national who intends to take employment in the United Kingdom will have a right to reside as a worker only if they are working in accordance with these restrictions. However, the restrictions do not and cannot interfere with the ability of a Bulgarian or Romanian national to exercise a right to reside in the UK on some other basis; for example, as a student or for the purpose of engaging in business. What they do ensure is that labour migration from Bulgaria and Romania reflects the UK’s economic needs by restricting employment authorisations to skilled work or employment in sectors where there are well established shortages of labour. Furthermore, the numbers given permission to work under these arrangements have not increased since the date of accession. Excluding participants in the seasonal agricultural workers scheme, the number of Bulgarian and Romanian nationals issued with accession worker cards in 2010 was 2,616, compared with 2,776 in 2008 and 2,097 in 2007.

As I have noted, the United Kingdom can only maintain its existing restrictions in circumstances of serious labour market disturbance. The Government have been concerned to ensure that the question of whether there is a labour market case for extending the restrictions is examined fully. The Minister for Immigration and Citizenship therefore asked the independent Migration Advisory Committee to consider whether there is a serious disturbance to the United Kingdom’s labour market and whether maintaining the restrictions would assist in addressing that disturbance. The committee’s findings, which it published on 4 November, were clear. On the question of whether the labour market is seriously disturbed, it examined the performance of the labour market against a number of indicators and concluded that it was performing poorly relative to the period prior to the last recession. On that basis, it is in a state of serious disturbance. It went on to conclude that an increase in the inflow of Bulgarian and Romanian nationals could have negative impacts on the labour market, particularly if it coincided with a change in the composition of that inflow, and that lifting the current restrictions would increase that risk. On the composition of the inflow, a particular risk would be that lifting the restrictions might increase the number of Bulgarian and Romanian nationals entering lower skilled occupations where migrants are more likely to substitute for, rather than complement, the resident labour force.

The committee acknowledged that the extent to which maintaining restrictions would assist in addressing such disturbance is subject to considerable uncertainty and it would not be sensible to attempt to put a numerical range around the likely inflow if restrictions were lifted. The Government would be equally cautious of attempting to do so. Nevertheless, the conclusion to be drawn from the committee’s findings is that a decision to maintain the restrictions would be both justifiable under the derogation in the treaty on accession and a proportionate response to current labour market disturbance. Accordingly, the Government have decided that the restrictions should be maintained.

I should add that Germany and the Netherlands have recently announced that they will maintain their restrictions. Spain has recently reimposed restrictions and will maintain them until at least the end of 2012. This is significant and not just because it means that the United Kingdom is not out of step with key EU partners on this issue. As the Migration Advisory Committee pointed out in its response, the risk of greater inflows would be highest if the United Kingdom lifted its transitional measures but other member states maintained theirs. The Government’s decision has avoided that outcome.

The Government believe that extending the current restriction to the end of 2013 is proportionate and the right response to current labour market conditions. I therefore commend the measure to the House.

[Lord Hunt of Kings Heath]

My Lords, I am sure that the Grand Committee is grateful to the noble Lord for his extensive introduction to these regulations. I was particularly interested in the advice that he read out from the Migration Advisory Committee. He will be aware that when the extension was agreed beyond January 2009, the committee reported in a similar vein at that time and said the impact of lifting the restrictions would be small but that the risks to the labour market were mainly on the downside. That led it to recommend a cautious approach. I assume that the committee is continuing that advice on the basis of that same philosophy.

I take the point the noble Lord made that it is difficult to attach facts and figures to this measure but does he accept the committee’s assessment of its impact? I would be interested to know whether he can put any figure at all on the likely impact of extending the measure by a further two years. He will know that the Merits Committee rather took the Government to task as regards the laying of the regulations and made the point that they have had rather a long time to consider the extension but, by leaving it to the last moment, it will have to be put in place. In a sense we are legitimising that through the current process. The Merits Committee would have preferred the policy to have been agreed somewhat earlier, which would have allowed the regulations to be laid before Parliament in draft and be subject to approval by resolution of each House. Will the noble Lord comment on that? What is his response to the Merits Committee?

[Baroness Hamwee]

My Lords, on the point about the timing of the measure, is the Minister satisfied that individuals and employers will not experience any practical problems as a result of that? I cannot quite get my head round what practical steps need to be taken. Is it the case that an application has to be made for a new accession work authorisation document and that there may be individuals—this goes to the question of the noble Lord, Lord Hunt, about numbers—who might have expected that they could continue to work for the same employer in this country beyond the end of this year but will, in effect, be given a matter of a very few working days to apply for the authorisation? Perhaps it is not as few days as from now until the end of December as the regulations were made—oh no, the regulations come into force on 30 December. I am getting very confused about the dates. I suppose that the warning was there for the employers but the regulations will not be made until the day before they need to be in formal terms, but there may be practical implications for individuals caught up with this. I hope that I have made myself at least moderately clear. The Minister is nodding, so I am glad about that.

In applying the tests, which the Minister has told the Grand Committee are about both the labour market and skills, will there be any changes from those that have been applied? My other question was about other EU member states. The Minister told us what some states are doing, so are we to understand that, in effect, the other member states are all maintaining their own status quo apart from Spain, which is reimposing restrictions, so that there is no other change across the European Union? The point has already been made that this cannot be looked at in isolation.

[Lord Henley]

My Lords, I am grateful to the noble Lord, Lord Hunt, for referring to the Migration Advisory Committee and its work, on which we are very dependent. He then asked me to speculate how many individuals might come in if we did not seek this further two-year derogation. I do not think that it would be helpful to try to do so. I offer as a little warning some advice to the noble Lord. He might remember that the Government, of which he was a member when Poland and other countries acceded to the European Union, did not seek any derogation on that occasion. It was suggested that the numbers coming here would be very small indeed. I forget the figure, but as we saw, the numbers coming in were exceeded by a matter of 10 or a hundredfold. That is why the noble Lord’s Government were very keen in 2006, with the further accession of Romania and Bulgaria, to make sure that we did have proper controls on the numbers coming in. We obtained that derogation, which other countries also obtained, for five years that could then be extended for a further two years. I shall not speculate on the numbers because, as the noble Lord will remember, it is very easy to get them wrong and to do so by a factor of—let us say, X, but a big factor.

The noble Lord then went on to complain about the timing and mentioned the Merits Committee. I appreciate that we received some criticism, and my noble friend Lady Hamwee also mentioned those problems. I can say that I think many people will have known that this was likely to happen as we had the ability to extend the five years by two years, as long as we did so by the end of this year. We issued this SI on 23 November, which, as my noble friend Lady Hamwee knows, does not come into effect until the end of the year. The Migration Advisory Committee published its report somewhat earlier in the month so we all knew that it was coming, and most employers knew that it was coming. My noble friend had some concerns about the difficulties that some employers may have but I can assure her that any individual who is working for an existing employer will not require fresh authorisation if he stays with that employer. Obviously, there will be a difference if he moves. There will be no changes to the criteria for granting authorisation at all.

The final point was about other member states. Obviously, it is very important to look at what other member states do because that will affect how many people come in. As the noble Lord will remember, when Poland and others were coming into the EU, other member states sought a derogation for a number of years. We did not and that is probably one of the reasons why a very large number came here. On this occasion things have happened differently, and as I mentioned in my opening remarks, Germany and the Netherlands are both seeking a derogation and Spain seeks to extend its derogation. Different things are happening in different countries of Europe, which is a matter for them to decide. We have made our decision based on the advice from the Migration Advisory Committee, which took into account what was happening in other countries in Europe. I shall write to my noble friend to give further details of what other countries are doing if she would like that. The important thing is that we took their actions into account in our decision.

Motion agreed.

Police: Officer Numbers

Lord Henley Excerpts

Tuesday 13th December 2011 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government how many police officers are currently employed by police forces in England and Wales and how many were employed in May 2010.

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

My Lords, police personnel data are collected on a financial year cycle. Published statistics show that there were 139,110 full-time equivalent police officers in England and Wales as at 31 March 2011. This compares with 143,734 as at March 2010.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Lord. He will be aware that police authority grants for the next financial year show a £700 million cut in real terms, which is part of the 20 per cent cut front-loaded over a four-year period. How can the Government continue to claim that these cuts are not having an impact on front-line policing when the latest statistics show a worrying rise in crime? What does the noble Lord have to say about that?

[Lord Henley]

My Lords, first, I remind the noble Lord that we have a deficit and that must be tackled by seeking better value for money from every public service. That includes the police. There is no need for the noble Lord to make signs of that sort.

I accept that there has been a decline in police numbers, but there is no need to get fixated on this. At the same time, we have seen over the period that I mentioned—March 2010 to March 2011—a decline in recorded crime of 4 per cent.

[Lord Mackenzie of Framwellgate]

My Lords, will the Minister tell us the cost of appointing police and crime commissioners and how many front-line officers that would represent?

[Lord Henley]

My Lords, I have always accepted that there is a cost to appointing police and crime commissioners, but we believe they will bring accountability. Accountability will be good for that service, and we will get even better value for money.

[Lord Howarth of Newport]

Does the noble Lord think it is good value for money if the crime rate is going up?

[Lord Henley]

I have just quoted the figures relating to the period that I cited in the original Answer, which showed that recorded crime is going down.

[Lord Hamilton of Epsom]

What progress is my noble friend making with cutting down on the amount of bureaucracy that the police have to get involved in—form filling and so forth—rather than getting out on the streets and deterring crime?

--- Later in debate ---

[Lord Henley]

I am very grateful to my noble friend for raising the question of bureaucracy. That is what my right honourable friend the Home Secretary has done in announcing a package of policies that will cut police red tape, saving some 3.3 million police hours per year. That is the equivalent of some 1,500 police posts.

[Lord Jopling]

My Lords, will the noble Lord answer yes to my question as to whether he will look at the pathetically low number of not only police officers but all emergency service workers who have been vaccinated against things such as smallpox and anthrax when the Olympic Games next year will clearly give us a dangerous situation so far as potential biological attacks are concerned?

[Lord Henley]

I hope I will be able to answer yes to my noble friend in due course. I will have to look at those figures, but I am unsighted on them at the moment. If my noble friend is prepared to accept it, I will write to him in due course.

[Lord West of Spithead]

My Lords, when I asked the noble Lord’s predecessor but one about the retiring of more senior police officers and how this would have an adverse impact on people such as the terrorism support officers, I was told that a central register would be kept of how many were going, so that it did not have a disproportionate effect if they were taken from each police area. Where do we stand on that now? Has it had a disproportionate effect or are we managing to keep a balance across all the police areas?

[Lord Henley]

My Lords, again, I am somewhat embarrassed in that I cannot answer the noble Lord’s precise question. I will certainly look at that, but I have not been made aware of any problems in that area. If I have not been made aware of them, I suspect that there is not a problem in that field. If I am wrong, of course I will let the noble Lord know.

[Lord Laming]

My Lords, the Minister will recognise that police forces across the country have been very successful in developing specialist child protection teams. In the current financial situation, some of these teams are extremely vulnerable. Can the noble Lord assure the House that he will use his good offices to protect these highly specialised and very important teams?

[Lord Henley]

The noble Lord is right to draw attention to the specialist work done by individual police forces. It is obviously a matter for each individual police force and the police authority to decide on the appropriate priorities. Certainly within the Home Office, we would want to encourage them to continue with that work.

[Baroness Hamwee]

My Lords, I apologise to the House for missing the start of the Question. I had forgotten that Prayers were earlier today.

Police officers tend to retire at a relatively early age. For their own satisfaction, as well as thinking of the public purse, can the Minister say anything about continuing to make use of their expertise and experience, which is the product of both years and public investment?

[Lord Henley]

My Lords, obviously the training of an individual policeman is a very expensive process. We want to get maximum use of all policemen for as long as possible. Your Lordships will have noticed that some of the policemen who operate around this House tend to be at the older end of the spectrum. We are grateful for their expertise in providing protection for this House. Perhaps, as my noble friend Lord McNally implies from a sedentary position, they all look rather young to us. However, we do want to get as much use as possible out of all those policemen who have trained at such considerable public expense.

[Lord Geddes]

Can my noble friend advise how long the delay is in the present climate for an officer passing all the hurdles and being promoted to sergeant? How long does that person have to wait before he achieves that rank?

[Lord Henley]

My Lords, I am facing a lot of difficult and technical questions, which I have to say I cannot answer in the manner in which I would want. I am grateful to my noble friend for putting that question, but I will have to write to him with an answer.

[Lord Dholakia]

My Lords, there has been considerable effort made to recruit police officers from the black and ethnic minority communities. Can my noble friend indicate whether there has been any problem in retaining such officers and any reasons for that?

[Lord Henley]

My Lords, as my noble friend has made clear, considerable efforts have been made to increase the diversity of the police force. All police forces have made considerable gains there. I am not aware of any problems of retention, but if my noble friend has any evidence of that, I would be grateful to hear from him. That would then obviously be a matter that we would have to address.

Protection of Freedoms Bill

Lord Henley Excerpts

Tuesday 13th December 2011 Grand Committee

[Baroness Hamwee]

My Lords, the amendment simply provides for the turnover of pupils generally on an annual basis. I certainly did not intend it to be reworded every year. Information goes out from schools frequently on an annual basis. Sometimes, it sits in the bottom of a child’s bag.

While I am on my feet, the noble Earl may be comforted if the Minister can confirm that, for the purposes of these provisions, writing includes e-mails and other forms of electronic communication, which I suspect it does.

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

In the interests of time, I confirm that that is correct.

--- Later in debate ---

[Baroness Walmsley]

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

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

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

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

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

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

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

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

[Lord Henley]

My Lords, my noble friend Lady Hamwee suggested that I should not talk about feed-in tariffs and solar panels, and I am tempted to follow her suggestion on that. I used to speak a great deal on those issues in my previous job, but I do not often do so now that I am in the Home Office. I am not sure that they are quite relevant to this debate. Possibly we ought to have a new award for relevance in amendments—we could call it the Lord Rosser award for relevance—and I could congratulate the noble Lord on winning the award on this occasion for bringing in feed-in tariffs and solar panels.

[Lord Rosser]

I am sorry if the Minister could not understand the point, but I quoted from one of the leading providers of this technology in schools who said that there had not been proper consultation or clear thinking about the consequences of the new policy. My point was that that lack of proper consultation or clear thinking about the consequences of a new policy seems to have become a feature of this Government, because that is precisely what happened with the new feed-in tariffs. I am sorry if the Minister cannot understand the relationship between the two.

[Lord Henley]

My Lords, as regards consultation, we consult till the cows come home in this department and every other department, and I am distinctly happy about the amount of consultation that has taken place on this issue. We will move on now from feed-in tariffs and solar panels and get on to the gist of the amendment.

My noble friend Lord Lucas is obviously not completely convinced that there is a need for parental consent at all, but accepts that he could be persuaded as long as, as I understand him, it is not overburdensome. That point is probably behind the amendments from the noble Lord, Lord Rosser, and others. By the way, the noble Lord, Lord Rosser, did ask in passing for confirmation of the figures he used, and I can confirm, if I heard them correctly, that he is broadly right. Our figures are that some 30 per cent of secondary schools and some 5 per cent of primary schools are making some use of biometric systems for dealing with matters which, again one ought to stress, are largely related to access to school dinners, libraries and that sort of thing—so not major matters that affect them in other ways.

My noble friend obviously needs a degree of persuading about these matters. It is probably best if I go through the amendments in the appropriate order. I will deal with them in an order that I will take rather than as they are set out, but possibly I will leave Amendment 85, the first of my noble friend’s amendments, which even he described as being garbled; it is possibly best if I say little about that. I think my noble friend will understand why I take these a little out of order. I will start with Amendment 88.

Amendment 88 would have three consequences. First, it would obviously narrow the definition of who is a parent for the purposes of these provisions. Secondly, it would change the scope of the requirement for consent in that only one parent will need to consent. Thirdly, it seeks to introduce legal protection for schools and colleges where a child’s biometric information is processed beyond the control of that school or college. I will begin by addressing the first and third effects of that amendment.

For the purposes of these clauses, a parent means the child’s mother, father or any other individual who has parental responsibility for the child. Where it is not possible to obtain consent from any such persons, the parent is the person who cares for the child, unless the child is accommodated by a local authority or some voluntary organisation, in which case consent will be needed from that authority. My noble friend’s amendments obviously narrow this definition to include only individuals with parental responsibility. This would mean that, where there is no individual with parental responsibility who is able to consent, a school or college would be able to process a child’s biometric information without any person providing consent. I am sure that is not my noble friend’s intention, and he would probably want to adjust his amendment if he comes back to it—and I see my noble friend nod. The Government believe that all children, whatever their care arrangements, deserve the same level of protection in relation to the use of their personal information by a school or college. That is why we believe it is right that the definition of a parent goes wider than that suggested by my noble friend. Again I see my noble friend nod, and if he wants to come back to that he will no doubt amend his amendment.

The third element of this amendment seeks to provide protection for schools and colleges where a child’s data are processed outside of the control of the school or college. I know that my noble friend is concerned that these provisions should not apply when pupils access commercial websites or software systems that use face recognition to control access. I can give reassurance to my noble friend that the provisions in Clause 26 cover only the processing of biometric information that is carried out by, or on behalf of, the school or college.

Let me move on from Amendment 88 to the alternative approaches suggested by my noble friend in Amendments 85 and 87. It is also appropriate to consider here Amendments 86 and 89, from the noble Lord, Lord Rosser, which address a similar point and which I think my noble friend said he possibly preferred to his own. All those amendments seek to adopt a different approach to consent. At their most radical, they seek to replace the opt-in arrangement provided for in the Bill with an opt-out process. As a variant of this, they seek to provide for consent to be given by a single parent. Given the sensitive nature of the data involved, a positive decision should be made by both parents. This approach would afford them the opportunity to act on any concerns that they may have about the use of their child’s biometric information. In the vast majority of cases I would expect parents to discuss the issues between themselves and reach some agreement. As those of us who are parents will know, that is not always necessarily possible but, in the main, parents can reach that conclusion among themselves.

--- Later in debate ---

[The Earl of Erroll]

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

[Lord Henley]

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

[Lord Rosser]

The Minister has raised a number of issues, but could he confirm that under the Government’s proposals a child of five could say no, even though the parents had said yes, and it would be the view of the child of five that prevailed? If a 15 year-old agrees and one parent says no and one says yes, will the Government then seek to uphold the right of the 15 year-old? Also, he said that under my proposal the 15 year-old would be dragged kicking and screaming. Could he just confirm that school teachers are not allowed to use force against pupils, or has the government policy changed?

[Lord Henley]

Government policy has not changed, and the noble Lord will accept that the words I was using were metaphorical.

[Lord Rosser]

Careless.

[Lord Henley]

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

[The Earl of Erroll]

If I could assist—

[Lord Henley]

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

[The Earl of Erroll]

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

[Lord Henley]

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

--- Later in debate ---

[Baroness Walmsley]

If the system is considerably enhanced, does the Minister accept that further information should be provided to parents?

[Lord Henley]

My Lords, I think this is what lawyers refer to as a question of fact and degree. If the system were, as my noble friend puts it, enhanced considerably and that involved a real change, then there would have to be further approval from the parents and children concerned. If it were a minor or technical change, I think that would not be the case. I shall leave it there, as it is a question of fact and degree as to whether there has been a proper change. I am in the hands of my noble friend Lord Lucas, but I hope that with those explanations of the various amendments he will feel able to withdraw his amendment. I think this debate has been very useful. We might not all agree totally but, as always, it is a question of getting the balance right on these matters, and I hope we have got it more or less right.

[Baroness Hamwee]

Am I right in understanding—and I apologise if this sounds as if I am trying to put words into the Minister’s mouth—that his concern is the bureaucratic provision of a requirement to make information available every year but he accepts that consent under these clauses would not properly be given unless the parent or child, as the case may be, is properly informed?

[Lord Henley]

Parents and children, to the extent appropriate for the child’s age, must be informed in the appropriate manner, and we want to get that right. We just do not think it needs to happen every year. If, as my noble friend Lady Walmsley said, there were substantive changes to what was being proposed, then further consent would be required, but we do not have to do that each and every year. Once should be enough for the duration of that child’s journey through that school.

[Lord Lucas]

My Lords, I am very sad indeed to learn that my noble friend’s equipment is entirely inanimate, but if for the purpose of legislation that is the meaning of the word, I am sure that having it in Hansard will suffice.

I am not at all sure that I understood the scope of “reasonable” as he expressed it. He said that the biometric system had to be run by or for the school, if I remember his wording exactly. I do not see where the boundaries of that are. If a bit of software provided by the school is being used on the school’s computers, why should that fall outside the prohibitions in this Bill just because it is a built-in component of a commonly available system? I would be very grateful if I could sit down with officials between now and Report to go through that.

I would also like to explore the scope of electronic means where we are looking at this consent. What forms of registering consent will be acceptable? This occurs as a general question. How is a school to know that a parent has given consent? How is it to know that it is the parent who has given consent? Schools do not have a stock of signatures to compare signatures against. If it is hard enough with something in conventional writing, how they are going to do it in electronic form I am not at all sure.

[Lord Lucas]

Yes, my Lords, and in the ordinary way where something is not, as it were, being mandated by law in the way that is occurring in the Bill, that would seem sufficient. I would like to be sure that that ordinary common-or-garden communication that the noble Baroness describes will be acceptable under the Bill. Clearly, there is the matter of a verifiable electronic signature. When we came to introduce electronic means into the definition of writing it was with the concept of an electronic signature that was verifiable so that you could complete documents by electronic means, but that is not what is being talked about here. What we are talking about is getting an email that says, “Yes, I’m happy and so is Fred”. Is that consent by both parents, or is there some greater degree of identification required for electronic communications to be acceptable under this thing? Or is it just the reasonable best efforts of the school? I am not asking the noble Lord to respond now if he has prepared—

[Lord Henley]

If I may, I will just briefly respond to the noble Lord. Obviously, on the question of what is reasonable, great tomes have been written about reasonability in legal terms for years and years, and it is something that we want to discuss. In regards to, as he said, what forms of consent will be required I think he was quite right to take the intervention from the noble Baroness, Lady Farrington, who as a mother and a grandmother speaks with great experience as to what happens to these messages and where they end up. However, if my noble friend would like to discuss this with myself and officials, that would probably be very useful, just to make sure that we can get it right between now and Report. I will certainly be more than happy to offer a meeting.

[Baroness Farrington of Ribbleton]

Can the Minister clarify before the next stage of the Bill whether or not, in circumstances where a school were to decide to use this form of recognition for people entering and leaving the school premises, he thinks that there are many 14, 15 and 16 year-olds who would withhold consent in order that they can slip out in the lunch hour unknown?

[Lord Henley]

If it was a matter of getting in and out of the school, there would have to be some other provision—as with school meals and libraries and so on—by which they could get in and out. It would not just be by biometric data; it might be by a PIN or a smart card or whatever. But I will certainly look at the point made by the noble Baroness, who speaks, as I said, with such great experience in these matters.

[Lord Lucas]

My Lords, I am grateful to my noble friend for offering a meeting. There are clearly also other subjects to discuss: what form of records schools commonly have about parenting and guardianship arrangements; whether those are sufficient to deal with the requirements of the Bill; whether the Bill allows sufficient flexibility to deal with occasions when parents should not be communicated with; and how commencement is proposed. The Bill will introduce a considerable process of adjustment even if it is taken carefully. As the noble Earl, Lord Erroll, said, it threatens effectively to make these systems inoperable and therefore to require schools at considerable expense and in a great hurry to put other systems in place and make alternative arrangements. The way in which this section of the Bill is to be commenced is quite important.

I would be delighted to have a meeting; I would be delighted if the noble Lord, Lord Rosser, wanted to join me, because it is clear that we have common concerns about how this will work in practice and a common suspicion that what the Government are about is trying to ban these systems all together. However, for now and particularly with regard to Amendment 85, I beg leave to withdraw my amendment.

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[Lord Marlesford]

My Lords, I should first declare an interest as I have CCTV cameras around my house. My main point is that the emphasis has perhaps very much been on what is to some extent a sort of fear and constraint: “Let’s find out how much”. I can see that, absolutely. However, CCTV is actually one of the great advances in protection, liberty and freedom and in having a safer society. I would always caution against standing against it. I recollect very well that many years ago when Citizens’ Band radio first came out, the Home Office in those days was very opposed to it. It reckoned that radio communications were for the broadcasting authorities, the military, the emergency services and itself. For a long while, people were illegally using CB radios but eventually the Home Office came round to recognising that CB radios, and any other intercom system by wireless, was a perfectly legitimate method of life. It is now in the ultimate in the mobile phone.

I can see that information is always interesting to get, but sometimes a survey such as this can be very expensive. There could be a commercial interest; no doubt, companies who supply mobile phone networks and, indeed, the hardware for mobile phones do a great deal of market research in order to maximise their sales all over the world. However, one wants to be quite careful before one takes something which has become an absolutely standard method of life and starts to spend a lot of money—public money in particular—in making great inquiries into it. I am happy for the commercial people to spend their money.

The example of the police in France was fascinating, and I had not heard about that. I do not think that we must do anything which stands in the path of progress in using modern technology. CCTV is not a particularly modern technology but it is an absolutely everyday technology. All of that said, there must of course be constraints on abuse or misuse of a technology. That is all I would like to say.

[Lord Henley]

My Lords, I can be quite brief on this. I start by agreeing with the noble Lord, Lord Rosser, that CCTV is a vital tool in fighting crime. I believe that the public and the police are generally supportive of its use. The provisions in the Bill build on that support and will, I hope, maintain public confidence in the use of CCTV. However, as we saw with Project Champion in Birmingham—the noble Lord will remember this—such confidence can be very rapidly undermined if CCTV systems are seen as spying on local communities, rather than as a tool that helps keep them safe and secure. Therefore, we propose that our code of practice—for which guidance is set out in Clause 29—will form a coherent framework that will enable the public to challenge any system operator over how and why they use CCTV. It will also assist operators in maximising the effectiveness of their systems.

Calling for an inquiry is not only a very expensive option, as suggested by my noble friend Lord Marlesford, at a time when we do not want to spend money on such things, but also adds very little other than delay to the proposed code of practice, which will help to ensure the right balance between protecting the privacy of the citizen and the security and safety of the public. Our approach is designed to make sure that those using CCTV do so appropriately, proportionately, transparently and effectively. I think that was broadly endorsed by the various responses to our consultation.

[Baroness Farrington of Ribbleton]

My Lords, the Minister helpfully referred to the responses. The Local Government Association develops guidance for member local authorities in many areas of activity. What was its view of this process for getting a code? Will it be fully involved in looking at how a code would work?

[Lord Henley]

I cannot at this stage remember precisely what the LGA’s response was. However, I can assure the noble Baroness—who, with her local government background, is presumably a distinguished former member of the LGA—that we will certainly want to listen to its views as we get that code of practice sorted out. The Secretary of State must prepare it, as set out in Clause 29. We want to make sure that it is appropriately, proportionately, transparently and effectively designed to ensure that the right approach is taken in dealing with these things and we get—dare I say it again—the balance exactly right. I believe that there is consensus that further regulation is necessary. However, there is also consensus that there should be no further delay in this matter.

I object to the amendment, although I am grateful to the noble Lord for tabling it because it is useful to discuss the code, because we want to move ahead with getting that code of practice right. We will consult not just the LGA on that but a great many other bodies. However, having the inquiry, as suggested by the noble Lord’s amendment, would not achieve much. It might be that other inquiries will take place later but, for the moment, we want to get the code right and that is exactly what we will do. I hope the noble Lord will feel able to withdraw his amendment.

[Lord Selsdon]

Maybe my noble friend could help me with something. I have asked previously how many cameras are registered. The answer was that all cameras should be registered with the Information Commissioner. I then asked how many cameras are registered with the Information Commissioner and the answer was none. Presumably my noble friend will be introducing a new form of commissioner who will register certain cameras. Could he perhaps explain the difference between the new system and what was meant to be the old system?

[Lord Henley]

The noble Lord has me there at the moment because I cannot assist him. We will be discussing further commissioners in due course. As regards the number that are registered, the noble Lord is ahead of me because he has seen that answered by one of my predecessors. I prefer to write to my noble friend about the details of his inquiry. Perhaps we can have further discussions between now and Report.

[Lord Rosser]

My Lords, the Minister said that his concern is about delay, and I will come back to that in a moment. If that is his concern, it does not explain why he does not accept Amendment 110, which relates to the private sector and those who may be covered by Clause 33(5)(k), since there is no intention at the moment of introducing it into these areas, and therefore it would be possible without causing a delay to agree to an inquiry there. I take it that in view of the fact that the Minister has not accepted it in relation to Amendment 110, it is a fundamental objection to an inquiry, not simply about delay, because Amendment 110 would not result in a delay.

[Lord Henley]

That is not the only aspect. There is also the cost. The noble Lord has not said who is going to pay for this inquiry.

[Lord Rosser]

If the Minister would care to tell me how much he thinks it is going to cost, perhaps we could discuss that issue and look at some of the other things that the Government are spending money on.

Our concern is that the code of practice—when it is drawn up, and we have not seen it yet—will act as a deterrent and prove to be something of an exercise in bureaucracy and additional cost. Additional cost is obviously an issue that is of considerable concern to the Minister. We do not sense that this Government look particularly favourably towards CCTV and that that may be one of the motives behind this proposal. We do not know, and the Minister has not told us, what the code will contain or what its impact will be on the use of CCTV. He has remained silent on that issue. The advantage of an inquiry is that it would show the extent or otherwise to which CCTV is being abused, and the Minister referred to that, so clearly he considers it an issue. It would also identify quite clearly the advantages and disadvantages of CCTV and what it has achieved, because some of us think that it has achieved a not inconsiderable amount. At least when the code was being drawn up, it would be drawn up against the background of a proper inquiry having taken place and looked at some of the allegations that are made. Therefore the code would be relevant and would address hard evidence instead of views or perceptions, and it would also make sure that the code would not in any way go over the top. That is why we are putting forward this proposal.

We note that the Minister has rejected it. He said that it was on grounds of cost as well as delay and had to agree that Amendment 110 would not cause any delay. Our argument is that when he draws up his code of practice, it may well lead to additional costs and a reduction of CCTV in areas where it would be beneficial for it to continue. However, we note what the Minister said. I will not pursue that matter any further at this stage, and I beg leave to withdraw the amendment.

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[Lord Tunnicliffe]

My Lords, I rise to speak to Amendments 102, 106 and 112A. I thank the noble Lord for ensuring that the results of the first consultation on the proposed CCTV code of practice were published before the Committee stage in order to ensure proper scrutiny. The opposition amendments in this group seek to probe the Government’s thinking in this area and to tease out more detail of the shape of the final code now that they have reflected on the results of the consultation.

On Amendment 102, we are concerned that any future code should not force local authorities and police forces into disclosing the location of cameras. The consultation notes that some respondents,

“considered that there ought to be public access to a full list of camera locations and data retention periods”.

I note that the Government, although not committing to such a view, stated in response:

“The Government intends that the Code of Practice will increase transparency over the operation of surveillance cameras”.

It is right that, in some cases, CCTV locations are made public. Indeed, many cameras are clearly visible to the public and their visibility acts as an important deterrent to crime. However, it must be right that local authorities and police should reserve the right to conceal the location of other cameras, particularly those positioned in sensitive locations and deployed temporarily in order to apprehend criminals. There is also a real concern that, by disclosing the location of cameras and surveillance centres, there is a risk that these will become the targets of vandals and criminals wishing to prevent the detection of crime. Will the Minister give a clear assurance to the Committee that any future code of practice will not include a blanket requirement to disclose the location of surveillance cameras?

Amendment 106 probes the Government’s intentions with respect to the code of practice in relation to CCTV and ANPR footage that is used as evidence in court. Clause 33 currently provides:

“A court or tribunal may, in particular, take into account a failure by a relevant authority to have regard to the surveillance camera code in determining a question in any such proceedings”.

In fact, this would appear to be the only real enforcement tool at the disposal of the Government. Local authorities will be required to have regard to the surveillance camera code but they will commit no criminal or civil offence if they fail to adhere to it. The implication is that the Government envisage that local authorities and police forces will feel compelled to comply with the code for fear that otherwise evidence provided by their cameras will not be admissible in court.

This view is reinforced by the response to the consultation in which the Government note that the failure to comply can be tested in judicial proceedings. It is one thing to conclude that evidence should be inadmissible on the basis that it violates requirements under the Data Protection Act; however, it is quite another to jeopardise whole trials on the basis that, for instance, the location of the camera in question was not adequately disclosed to the public. What assurances can the Minister give to the Committee that enforcement of the code in this way will not lead to the police being hamstrung in their use of key evidence derived from CCTV cameras?

Finally, Amendment 112A seeks again to probe the Government’s intentions with regard to ensuring that there is clarity for local authorities on the overlap of existing requirements under the Data Protection Act and those under the proposed code of practice. This point was raised by a number of sources when the Bill was debated in another place. Indeed, the Information Commissioner has himself expressed concerns about the implementation of the code in this area. In a letter to my noble friend Lady Royall on 22 November the Information Commissioner noted:

“There is potential overlap between these provisions, including my role, and those set out in the bill relating to the Secretary of State’s Code of Practice and the activities of the Surveillance Camera Commissioner”.

In his memorandum to the Public Bill Committee, the commissioner goes further, stating that,

“there is a risk that regulation becomes frequently fragmented, confusing and contradictory, especially if commissioners take different approaches … there will be overlaps in their responsibilities running the risk that commissioners may adopt differing interpretive approaches and guidance on each other’s statutory provisions”.

The Government’s consultation recognises that there is an issue to be dealt with, and states:

“We shall take note of the concern expressed by respondents in the way we develop the role of the Surveillance Camera Commissioner and how this interacts with that of the Information Commissioner and the Surveillance Commissioners”.

To prevent unnecessary bureaucratic burdens and confusion in the public sector, I ask the Minister to take this opportunity to expand on how the Government aim to ensure maximum clarity and minimum overlap in the roles and requirements of the two commissioners.

[Lord Henley]

My Lords, my noble friend Lady Hamwee moved Amendments 100 and spoke to Amendment 101, and the noble Lord, Lord Tunnicliffe, spoke to Amendments 102 and 112A.

In the amendment that we have just dealt with, the noble Lord, Lord Rosser, complained that we knew nothing about the code. Obviously, we do not know about the code at this stage because it has not yet been prepared. Some detail is given in Clause 29 about what the code may include particular provision about; we lay it out in subsection (3), which says:

“Such a code may, in particular, include provision about”,

and then goes from paragraphs (a) to (i). Subsection (4)(a) then provides that such a code also,

“need not contain provision about every type of surveillance camera system”,

and subsection (4)(b) says that it,

“may make different provision for different purposes”.

We have amendments from the noble Lord, Lord Tunnicliffe, dealing with that.

I start by dealing with my noble friend’s amendments, which seek to extend the list of matters that may be covered by the surveillance code of practice. As I have said, subsection (3) is intended to set out a very broad framework in the Bill for which issues may be covered in the code of practice. We have deliberately adopted a very flexible framework so that the code of practice can be revised over time in the light of experience and to reflect the wide range of circumstances in which surveillance cameras are used. For these reasons, the list of matters that may be included in the code is not intended to be prescriptive. Nor is it intended to be an exhaustive or exclusive list. The nature of such non-exhaustive lists is that they inevitably attract debate as to why this or that matter has not been included. Certainly, on first seeing Amendments 100 and 101 from my noble friend, I was unsure what she had in mind. However, I am grateful for her explanation that she wanted a degree of reassurance about what might be included. She also expressed concerns about standards and how they could concern not only the competence of an operator of CCTV but whether the operator was a fit and proper person. Those standards might also apply to operational processes but the code is intended to provide a degree of advice, rather than absolute prescriptive requirements. With that reassurance in mind, I hope that the noble Baroness will accept that, as we develop the code further, we can consider her points and make sure we get it right.

[Baroness Hamwee]

My Lords, it may be helpful if I address this issue now so that we do not need to come back to it later. The wording is “standards applicable to persons”. Is the Minister saying that this refers to the standards used by persons but it is not applicable to them? If anything, it is about them: it is not who they are but how they work and the standards that they use. It reads as though it is much more personal.

[Lord Henley]

I think that my noble friend has got it right. If she has not, I will certainly write to her. The point I was trying to get across is that the standards apply to the process and not just to the person. I expect my noble friend is a better draftsman than I am—I give her an assurance that I did not draft this myself—but Parliamentary draftsmen are a law unto themselves. If we have not quite covered the point that my noble friend is making, we will look at it.

I was slightly surprised that Amendment 102 was spoken to by the noble Lord, Lord Tunnicliffe, but I appreciate that it is a probing amendment and seeks to find out what we are trying to do. I repeat that the Government, despite what the noble Lord, Lord Rosser, said, are committed to supporting the use of CCTV and ANPR—automatic number plate recognition—as very effective crime-fighting tools and to their being used with the support and confidence of the public. That is the important point we must remember. We need the support and confidence of the public, and that is why I mentioned the experience of Birmingham when debating an earlier amendment.

Such support will be dependent on transparency on the part of the system operator about the purpose of their camera deployment and the area in which the cameras are being used. Not only would Amendment 102 send a signal that operators can be more covert about their use of CCTV but, more fundamentally, it is likely to run contrary to the Data Protection Act. The Information Commissioner’s existing CCTV code of practice is very clear on the general requirement to let people know that they are an entering an area with CCTV coverage. The guidance states:

“The most effective way of doing this is by using prominently placed signs at the entrance to the CCTV zone and reinforcing this with further signs inside the area. This message can also be backed up with an audio announcement, where public announcements are already used, such as in a station. Clear and prominent signs are particularly important where the cameras themselves are very discreet, or in locations where people might not expect to be under surveillance. As a general rule, signs should be more prominent and frequent where it would otherwise be less obvious to people that they are on CCTV”.

As I said earlier, we saw in Birmingham that public confidence can very rapidly be undermined if the police and others are seen to be imposing these systems without the appropriate public consultation or support.

That is not to say that there will not be occasions when covert surveillance needs to be conducted using CCTV. We are not ruling that out. However, in such cases the surveillance will need to be properly authorised under RIPA. Clearly, in such cases there would not be the same expectation that the location of the relevant cameras was publicly disclosed.

On Amendment 106, I appreciate that it stems from a concern that justice might be prevented or denied in a criminal trial where the defence argued successfully that a small technical breach of the code is sufficient to demonstrate that CCTV or ANPR evidence is flawed and not of a sufficient evidential standard. From that starting point it might be possible to construct a scenario where, in an attempt to invalidate that evidence against their clients, lawyers would be falling over the detail of a relevant authority's performance against the code and seeking auditable records of any decisions made. We believe that that evidence may be very valuable in any trial, but it is rarely going to be the only source of evidence. I find it difficult to foresee a scenario where a case would be dismissed just because CCTV evidence is argued as inadmissible due to the system operator being in some way non-compliant with the code. The amendment should be seen in the context of a code that is intended to be a reference document to help ensure that surveillance cameras are used proportionately and effectively but which does not impose absolute requirements on operators. Against that backdrop, we do not believe that the provisions will give rise to the fears expressed by the noble Lord.

On Amendment 112A, I have a degree of sympathy for the spirit that underpins it. It seeks to ensure coherence between the requirements in the surveillance camera code and the Data Protection Act and I can see why there might be concerns about overlapping guidance in this area. Those concerns are precisely the reason why we are proceeding with the development of the code through close discussion with the Information Commissioner and his office. The Information Commissioner is keen to work with us to help ensure that there is effective regulation of surveillance cameras with clarity and coherence for both system operators and the public. I believe that that work will ensure that not only the code of practice but the roles and responsibilities of the two commissioners fit together and everyone can be directed to the right place for guidance, information and advice.

I think that I have dealt with the point raised by my noble friend Lady Hamwee, and I hope I have dealt with the points raised by the noble Lord, Lord Tunnicliffe. I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

Indeed. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I am grateful for that clarification. Under Clause 34, the Secretary of State is to appoint the Surveillance Camera Commissioner. My amendment proposes that the appointment instead be made by Her Majesty by Letters Patent. The reason for this amendment is that the Information Commissioner, to whom we have referred several times this afternoon and previously in Committee, and who before holding this office was in a previous incarnation the Data Protection Commissioner and before that the Data Protection Registrar, is appointed through the process which I propose here. The roles of the Surveillance Camera Commissioner and the Information Commissioner seem to be complementary; there is a lot of common ground and certainly they have quite a lot of mutual interest. My amendment seeks to understand the distinction in the modes of appointment. Are the Government seeking to create some sort of hierarchy or, briefly, why is there a difference?

Before he had to leave the Committee the Earl of Erroll came over and said that he supported my amendment. Possibly his support is greater than the thrust of my amendment, at any rate at this stage, but I thought I should report that to the Committee. I beg to move.

[Lord Henley]

I am grateful to my noble friend for her amendment and for her explanation of what it is about. I am also grateful that she assured us that she had the support of the noble Earl, Lord Erroll, who I think has some very important hereditary role in Scotland which probably influenced him in his view of insisting that this should be a matter for Her Majesty rather than the Home Secretary.

I will make just a few remarks about the role of the commissioner which I hope satisfy her concerns. It is a role which will be pivotal in promoting first the new code of practice, and in assessing its effectiveness and impact. In particular, the commissioner is charged with encouraging compliance with the code, reviewing how it operates, and providing advice on the code. Precisely how the commissioner decides to fulfil those duties will be a matter for him, but it will involve an impartial and independent assessment of all the issues. Independence is something we want to stress.

As we have already made clear, as did my honourable friend when he debated these matters in another place, our intention is to combine the new role of the commissioner with that of the existing Forensic Science Regulator. The existing regulator, Mr Andrew Rennison, was appointed by the previous Government as the interim CCTV regulator. He therefore already has considerable grounding in this area, and he has established a wide range of contacts with interested parties. That will be helpful in his new role of promoting and monitoring the code of practice.

At the same time his work as the forensic regulator will provide a useful complement, as well as much relevant background, in the area of seeking to improve the consistency of use and standards of performance of CCTV. Improving the evidential value of camera usage and images is also an important area, and one which cuts across both roles.

At the moment—and I will come on to this—I appreciate that sometimes these matters are dealt with by the Home Secretary and sometimes by the Crown. However, I do not see the need to depart from the normal practice, that is that the appointment is made by the relevant Secretary of State, in this case my right honourable friend. As with any other statutory office holder, we would expect the Surveillance Camera Commissioner to discharge his responsibilities independently of ministers and without fear or favour.

As with other public appointments, the appointment process will be overseen by the Public Appointments Commissioner and from April 2012 it will be regulated by the Office of the Commissioner for Public Appointments code of practice. This will be the case whether the appointment is made by my right honourable friend or by Her Majesty on advice from the Government.

The amendment would not actually provide a materially different outcome in terms of independence of the officeholder. I appreciate that my noble friend has drawn a comparison with the Information Commissioner, suggesting that there is some sort of hierarchy between different appointments as to who makes them. However, that office has a somewhat wider remit and plays a key role in regulating the Government itself. The additional assurance provided by the appointment by Her Majesty is therefore justified in that case but I do not think it is warranted here, given the somewhat narrower focus of the Surveillance Camera Commissioner, and would not lead to a different outcome.

I hope that that assurance is sufficient for my noble friend. I assure her that we will want a robust, independent commissioner dealing with surveillance cameras and that the appointment process provided for in the Bill will secure that outcome. Although I appreciate that there are occasions when it is appropriate that Her Majesty should make the appointment on the advice of the Government, there are other occasions when it is just as appropriate that it should be by my right honourable friend the Home Secretary. I hope therefore that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, that response is helpful, particularly the comment about the Information Commissioner regulating the activities of the Government. Of course, the Minister will understand that we think that the way the Government use cameras should also be regulated, as in my noble friend’s Amendment 107. I accept that there will not be any difference in reality in the process, except for that last stage. It is important to have had the assurance that there is not a hierarchy in importance or in powers. I was concerned that there should not be, given the potential mutual interest—as I said, it is not quite an overlap—and I think we have had that. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Henley]

The noble Lord, Lord Phillips, mentions the Sub-Treasurer of the Inner Temple and assures the Committee that he does not think that he would act improperly in any way. I hope he would extend that to the Under Treasurer of the Middle Temple, my own Inn, because I am sure she would act in an equally proper manner. I see my noble friend Lord Faulks, who I think is a bencher of the Middle Temple, nodding in agreement on that matter.

[Lord Phillips of Sudbury]

I give him that assurance from my heart.

[Lord Henley]

I thank the noble Lord for that. I hope I can deal with some of his queries, and I hope I can assure him that I do not believe that the drafting here is opaque in any way whatever.

When we look at Clause 33(5), it is pretty clear that we have all the classes listed in paragraphs (a) to (j), including the Council of the Isles of Scilly, the Common Council of the City of London and, in effect, all local authorities. Then we have paragraph (k), which states,

“any person specified or described by the Secretary of State in an order made by statutory instrument”.

That is as clear as clear could be that it can be extended by the Secretary of State after consultation with the appropriate people who might be affected. Those people could be public, they could be private, or whatever.

[Lord Phillips of Sudbury]

The Minister will have observed that Clause 33(2) states:

“A failure on the part of any person to act in accordance”,

with the code. That does not seem to sit comfortably with the much wider interpretation in the same clause of the same phrase.

[Lord Henley]

No, my Lords, it is very clear. In Clause 1, we are talking about any “relevant authority” and relevant authorities are listed in subsection (5). That could be extended. If it was extended, to use “relevant authority” in subsection (2) would not include paragraph (k) of subsection (5). The noble Lord is making a mountain out of a molehill. As I understand it, it is quite clear. Should it be extended, it would then be:

“A failure on the part of any person to act in accordance with the provision”;

“person” in its legal sense would include paragraphs (a) to (j), but would also include paragraph (k) if my right honourable friend had extended those who are covered by it by using subsection 5(k) so to do.

[Lord Phillips of Sudbury]

I promise that this will be my last intervention, but it is important to get this as right as we can. I am afraid the Minister’s argument does not hold because Clause 33(5) starts by saying:

“In this section ‘relevant authority’ means”,

and that includes any extension under paragraph (k). I put that to him, and I would be grateful if he would review this later.

--- Later in debate ---

[Lord Henley]

Obviously, I will take advice from those who are skilled in drafting, which is a skill that I have never learnt and I have no way round it. To me, it is quite clear that there is a relevant authority, and we list the relevant authorities, but “relevant authority” can be extended by subsection 5. Relevant authority is mentioned in subsection (1), but “any person” in subsection (2) would include all those in subsection (5)(a) to (j) and paragraph (k) when it expands the role of paragraphs (a) to (j). I suspect that we will not get very far by arguing this now, but it might be that we could discuss it later. It might be something that I can assure my noble friend that we will look at with the relevant drafting authorities to make sure that we get it right if he thinks that we have got it wrong.

I shall move on to the other questions that my noble friend asked about Clauses 34 and 35 and what the commissioner can do and how he can review the code. My noble friend felt that Clause 34(2)(b) on,

“reviewing the operation of the code”,

and Clause 34(2)(c) on,

“providing advice about the code”,

limit what the commissioner can do. Again, I stress that the commissioner is independent and it will be up to him to decide in the light of what is in statute. He will also have the ability to go beyond that should he so wish. The question that we come back to with the amendment concerns what sort of review we should have. I agree with my noble friend Lady Hamwee that it is quite right that we should keep the code under review, but I believe that the Bill provides adequately for that.

Clause 34 sets out the functions of the commissioner in some detail. They include encouraging compliance with the code and reviewing its operation. The commissioner is also asked to report annually on the exercise of those functions, and those reports will be laid before Parliament. In discharging those functions, we fully expect the commissioner to consider whether the code needs to be revised in any way and, no doubt, to offer advice and include recommendations to that effect in his annual report. We would also expect the commissioner to review from time to time whether the duty to have regard to the code should be extended to other operators, be they public or private, given that the extension of this duty is one of the ways in which he will be able, under Clause 34(2)(a), to encourage compliance with the code. Again, this is something that we want to do. Although the code will initially be binding on the relevant authorities only, we hope that others will look to it as the model by which they act. The commissioner will report annually on his functions so, again, we do not need to wait for up to three years, as suggested by my noble’s friend amendment.

With those assurances and that explanation, and accepting the point that we will certainly look again at what my noble friend Lord Phillips had to say about the drafting—I do not agree with him, but I might be wrong; I frequently am—I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, the Minister referred to compliance by relevant authorities and others who might look at how it is working. That takes us straight back to Clause 33(5)(k) and whether the person referred to there is to be construed in the normal meaning of that language. I have been trying to catch the eye of the noble and learned Lord, Lord Scott, to tempt him to enter into this, but he has resisted, which is probably quite right. I see now that he is not going to resist.

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[Baroness Miller of Chilthorne Domer]

My Lords, it is very interesting that the Opposition have chosen to table a fairly narrow amendment to RIPA to explore these issues. In fact, the criticism from the very moment that it was conceived, let alone drafted or passed into law, was that it was poorly drafted and had many problems which I shall enumerate more fully under my Amendment 128.

It is interesting that the Opposition have chosen to table such a narrow amendment. Have they ignored all the other constructive suggestions that have been made? They are focusing their attention simply on this one issue when, in fact, as the noble Lord, Lord Rosser, has pointed out, it is probably the area of RIPA with the least problems.

[Lord Henley]

My Lords, I am grateful for that intervention from my noble friend Lady Miller.

The measures in Clauses 37 and 38, together with the changes that we propose to make through secondary legislation, will deliver the coalition commitment to limit local authority use of RIPA—a commitment we made when the coalition came into being following the last election. The Bill also gives effect to the conclusions of the counter-terrorism review which was published in January. That review recommended two changes to the use of RIPA powers by local authorities.

First, these clauses will require that the exercise of RIPA powers by local authorities be subject to prior judicial approval. The second change, which will limit local authority use of directed surveillance to the investigation of offences which carry a maximum six-month sentence, will be implemented through secondary legislation made under RIPA. That will ensure that direct surveillance cannot be used to investigate relatively low-level matters, such as littering, dog fouling and schools enrolment, while still allowing it to be used against large-scale matters such as fly-tipping or waste-tipping, extensive criminal damage and serious or serial benefit fraud cases.

In response to representations received during the review, we have decided to make an exception to the seriousness threshold for offences relating to the underage sales of tobacco and alcohol. The investigation of those offences relies heavily on the use of directed surveillance and so in these circumstances the review concluded that it was appropriate to have a limited carve-out so that trading standards officers could continue to take effective action against businesses which seek to flout the law on age-related sales.

The conclusions of the counter-terrorism review were endorsed by my noble friend Lord Macdonald, who provided independent oversight of the conduct of the review. However, the amendment seeks a rather wider review of RIPA. I will say straightaway that, although the Government agree that it is essential that people’s privacy is protected from any unnecessary or disproportionate access by public bodies discharging their duties, this is precisely why RIPA was introduced, debated and passed by Parliament. And it is precisely why the way it is working is kept under constant review—not just by the Home Office but by the independent commissioners who report to the Prime Minister and publish annual reports which are laid before Parliament.

In bringing forward the current proposals to limit local authority use of RIPA, we are responding to public concern about a specific area in which the law operates. The measures are intended to restore confidence and ensure that any fears of future misuse are unfounded. But there is no well-founded indication that there is a need for much more fundamental reform of RIPA. Indeed, any regulatory regime would need to be built on precisely the same principles and contain the same human rights safeguards as RIPA is built on.

No one should be complacent about how our right to privacy is safeguarded. The measures before us come from one review and were endorsed by a public consultation. We need to get on and deliver them, but I put it to the noble Lord that another review before we have delivered the recommendations of the first would be premature and no doubt expensive—I do not know how many other reviews he will propose during the passage of the Bill. We will continue to monitor how the new arrangements are working in practice and adjust our approach if necessary. The developments will be reported on also by the independent RIPA commissioner, whose published reports, as the noble Lord will be aware, are laid before Parliament each year. We are confident that the measures in the Bill, together with the associated secondary legislation introducing the seriousness threshold, will prevent local authorities using RIPA in a way that undermines public confidence. Therefore, I hope that the noble Lord will feel able withdraw his amendment.

[Lord Rosser]

My Lords, in drawing up the amendment, which the Minister said was quite wide-ranging in relation to RIPA, we were seeking to address in particular that part of the Act relating to local authorities, since the coalition has made it—and the Minister has reaffirmed it—one of its objectives. It is stated in the impact assessment that the provision stems from perceptions that local authorities have misused powers rather than, apparently, hard evidence. Bearing in mind the Interception of Communications Commissioner’s view that expenditure of £250,000 will be incurred on something that is apparently regarded, certainly as far as local authorities’ use of the powers is concerned, as a perception, it did not seem unreasonable to suggest that there should be an investigation to get some hard evidence so that we might all be clear on precisely what problem we were seeking to address.

However, I have taken note of what the Minister has said. We will reflect further on the matter. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Selsdon]

My Lords, I shall speak to Amendment 126 and the other amendments. I support my noble friend Lady Miller. This subject is, unfortunately, one of my hobbies. I am totally opposed to people entering other people’s property without permission or court orders and I am totally opposed to this form of surveillance, even if it is called observation. I declare an interest as former secretary of the Parliamentary Space Committee; I am involved in space and privy to certain information about advanced technology that makes me even more nervous.

RIPA was a great idea when it started—like most things with initials that you cannot remember—but, even when it is amended, I will be concerned about public bodies and, in particular, covert activities. However, public bodies can get round the safeguards that are there by accepting evidence gathered by non-public bodies. That leads us to the fear that in these sorts of covert operations a public body, all in good faith, may find that it has an opportunity to obtain from a third party information that may be offered to it, not necessarily by a hacker but by some person who finds that he has something of value that could be sold. The amendment proposed is that one should not be able to use that information in prosecutions.

I will not go too far on this but we know that the listening devices that are around are extremely sophisticated and can be programmed from many miles away. Aerial surveillance is also possible from satellites in real time—not the Google thing of showing a picture of your house from above but information that can be picked up.

The purpose of Amendment 126 is to introduce a safety clause. I think that the Minister may be prepared to accept it. Once amended by the Protection of Freedoms Bill, public bodies will be able to get round the safeguards by accepting evidence gathered by non-public bodies using covert surveillance that could not have been authorised by the public body itself. This may mean that the public body, in good faith, is offered information or materials that could be helpful in pursuing its course by a private sector or non-public body. The question is therefore whether the public body has any responsibility for this and for the information provided. The suggestion here is that if freedoms are to be protected the loophole must be closed and it must not be acceptable for information to be gathered covertly without proper authorisation and used for prosecution. That means that the public body must take responsibility for any information that may be gathered and its name must be linked to it. Thus any information that is gathered that the public body has not itself authorised or been associated with should be excluded from any efforts of prosecution.

We know that many examples of this are being pushed around at present. The amendment is relatively simple; it says that anything that is done in the name of a public body, or is misused in the public body’s name, must be the responsibility of the public body, which should be responsible for making sure that everything is in order.

[Lord Henley]

My Lords, just to make sure that I get things right, I should make it clear that it is my understanding from the intervention from the Deputy Chairman of Committees that we are dealing with Amendments 115 and 120 to 128, but not with those in the name of my noble friend Lord Phillips, which start at Amendment 116, those being a separate group.

[The Deputy Chairman of Committees]

Amendment 122 is in the second group.

[Lord Henley]

I take that correction. I do not know how long we will spend finishing off this amendment, but perhaps this one or the next should be the last one that we deal with today, because I think we have made pretty good progress. We have will have a relatively short list of amendments to discuss for the next day and will have no problem finishing off Committee stage when we return after Christmas.

I am grateful to both my noble friends Lady Miller and Lord Selsdon for setting out their arguments in support of these amendments and I shall briefly deal with them. I start with Amendment 115 and the amendments associated with it—Amendments 120, 121, 123, 125 and 127—which leave out “relevant” or “relevant person”. We are introducing a judicial approval mechanism to restore public confidence in local authorities’ use of covert techniques. Local authorities will no longer be able to self-authorise or to use directed surveillance in trivial cases, thereby further safeguarding personal privacy. Such public concern does not exist for the use of covert techniques in cases of serious crime or national security. In a judicial review it will be for the magistrate to approve the authorisation for local authorities to use such techniques only where he or she believes that use of the technique would be both necessary and proportionate.

Imposing judicial approval on all public authorities, law enforcement and intelligence agencies, which the amendment of my noble friend Lady Miller seeks to do, could seriously impair the operational effectiveness of such organisations. Having to seek a magistrate’s approval may, given the extent to which such techniques are used, result in operational delay, which could have grave consequences. Furthermore, it is wholly inappropriate for the sensitive nature of these cases to be disposed to a local magistrate.

RIPA authorisations for the most sensitive techniques, such as intrusive surveillance and interception, which may be used only by law enforcement and intelligence agencies, are already pre-approved by a surveillance commissioner or the Secretary of State. The Government will continue to keep the use of RIPA under review and respond in the most appropriate way if there is evidence of misuse. If in the future there is a compelling case for extending the requirement for prior judicial authorisation for certain other public authorities, these clauses confer an order-making power to enable this to happen.

On the second part of Amendment 128, my noble friend Lady Miller suggested that there should be a further review by an independent reviewer. I appreciate that the concern behind the amendment is that the Act is now some 10 years old and that the pace of technological development during this time has been unparalleled, a point to which my noble friend Lord Selsdon referred. I agree that how this legislation is performing and keeping pace with these developments is something on which we would naturally all seek assurance.

At its heart, RIPA is human rights legislation; it contains human rights safeguards to ensure that it carries on working as Parliament intended. Those safeguards include the appointment of independent bodies to oversee, inspect and redress wrongs. As the Committee will be aware, there are three independent commissioners—all of whom have held some of the highest judicial offices in the land—to examine various aspects of how RIPA is working and to publish their findings. Their inspection teams visit public authorities using RIPA powers and provide valuable advice on interpreting the law correctly, and surveillance commissioners authorise some of its more invasive techniques. In addition, those commissioners produce annual reports on their findings which are laid before Parliament each year. So we already have an effective mechanism for ongoing scrutiny and reporting the findings to Parliament. The commissioners will continue to inspect local authorities and will report on how the judicial approval provisions are working in practice.

As to the wider question of changing the law to permit intercept material to be used evidentially—which is currently prohibited by Section 17 of RIPA—that is already being independently reviewed by Sir John Chilcot, who is leading a cross-party group of privy counsellors to examine how a model to permit this could work in practice. The Government will bring the subject before Parliament again once the cross-party committee has finished taking evidence. When it does so is a matter over which I have no control, but I look forward to being able to debate these matters in due course.

--- Later in debate ---

Amendment 115 withdrawn.

[Lord Henley]

My Lords, with the agreement of the Committee, this might be a convenient moment to adjourn until Thursday at 2 pm.

Committee adjourned at 7.03 pm.

Immigration

Lord Henley Excerpts

Wednesday 7th December 2011 Lords Chamber

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

My Lords, we are committed to reducing net migration to tens of thousands, not hundreds of thousands, by the end of this Parliament. We have already introduced an annual limit on the number of non-EU workers, overhauled the student visa route and increased enforcement activity. Our next steps are to break the link between temporary and permanent migration by restricting settlement rights and to reform family migration.

[Lord Roberts of Conwy]

I am glad to hear that very positive response. With immigration in the last calendar year running at 591,000, and in this year to March at only 9,000 fewer, is it not imperative that we do all that we can to reduce immigration for the sake of everyone already here and relying on our hard-pressed services, and to keep the total population from reaching the projected high of 70 million about 16 years from now?

[Lord Henley]

My Lords, we are trying to reduce the net migration figures—that is, the difference between immigration and emigration. I stress that we believe that immigration enriches the country and we owe a lot to all those who have come and who will come to this country. However, there must be limits, and it must be sustainable. We have seen a smallish drop in net migration, but it is not as small as it should be. That is partly because emigration seems to have gone down very dramatically. There could be a number of reasons for this; I cannot speculate on that. I suspect it is not for the reason that the noble Lord, Lord Tomlinson, is trying to give from a sedentary position. Emigration has probably come down because there is no longer a Labour Government in power and people want to stay in this country.

[Lord Anderson of Swansea]

Will the noble Lord confirm that many of those hard-pressed services, including our health service, are in fact provided by immigrants? Will he also say how robust are the efforts to ensure that marriages apparently properly entered into subsist at the end of the relevant period?

[Lord Henley]

My Lords, the noble Lord, Lord Anderson, is right to point out that we owe a lot to immigrants, particularly in those so-called hard-pressed services. However, there are a great many employed people in this country. As he will remember, a previous Prime Minister, Mr Gordon Brown, made a point of wanting British jobs for British people. Those jobs could be done by people here if they were able to take them up. Regarding the noble Lord’s substantive point about the genuineness of marriage, that is something we want to address and are addressing.

[Baroness Hamwee]

My Lords, the Office for Budget Responsibility has drawn attention to the link between migration and growth. Its July report on fiscal sustainability mentioned that immigrants are more likely to be of working age than the general population. Will the Minister acknowledge the importance of this factor, given our generally ageing, and therefore less economically productive, society?

--- Later in debate ---

[Lord Henley]

My noble friend makes a very valuable point about the demographic changes we are facing. People have fewer children, we are an ageing population and we live longer. I welcome and acknowledge what she says. However, there is a limit to the number of people we can get into the country and we want to make sure that the net migration figure is sustainable in the long run.

[Baroness Prashar]

My Lords, does the Minister agree that overseas students are not immigrants and should therefore not be included in the net migration figures?

[Lord Henley]

The noble Baroness makes a very good point. The changes we are making for overseas students are intended to make sure that they can come here to study and can possible stay on, but we do not want them to bring their families where that is not necessary or to stay on as permanent residents afterwards if that is not appropriate.

[Lord Peston]

Will the Minister enlighten us on the economics of all this? A great many of his noble friends in this House and his honourable and right honourable friends in the other place claim to be great supporters of free trade and the free market. Will he explain how that is compatible with denying employers and other institutions the right to buy labour services, wherever they might come from, that can be used profitably? Surely supporting the free market means allowing precisely that, and not limiting immigration?

[Lord Henley]

My Lords, I could, if I had the time—but I do not have the time—give the noble Lord a long lecture on the economics of this.

[Noble Lords]

Oh!

[Lord Henley]

Perhaps the noble Lord and I could have a discussion about this at another time and in another place. The simple fact is that some control has to be brought in because the numbers are unsustainable in the long run. The noble Lord does not agree with me; we will have to remain not agreeing on this subject. However, there are limits to the number of people we can fit into the country.

[Lord Willoughby de Broke]

My Lords, if the aim is to reduce net immigration, will the noble Lord say whether he is going to repatriate the power over immigration from the EU? It would surely help to reduce net immigration if we controlled immigration from the EU.

[Lord Henley]

My Lords, there are no plans to do so.

[Lord Hunt of Kings Heath]

My Lords, on the economics of immigration, is the absurdity of the Government’s position not shown by what has happened in relation to the students whom he mentioned? Already, universities are reporting a downturn in the number of international students coming to this country, causing grave disadvantage to the UK. What does he say to the House when other countries have opened their doors with open arms to such students?

[Lord Henley]

My Lords, I am not going to take lessons from the noble Lord on the absurdity of our position when the party opposite, when in government, did absolutely nothing to control immigration—nothing whatever. It is right to control the numbers and we will continue to try to do so. It is also right to control the number of students, particularly the number of bogus students coming to bogus colleges who should not be coming in at all.

Phone Hacking

Lord Henley Excerpts

Tuesday 6th December 2011 Lords Chamber

[Lord Fowler]

To ask Her Majesty’s Government what estimate they have made of the number of people affected by newspaper phone hacking.

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

My Lords, the number affected is being assessed as part of the current investigation by the Metropolitan Police Service. At this stage, no final estimate has been made, but the Met recently reported that it has contacted more than 1,800 people, of whom around 600 are identified as victims or potential victims of phone hacking.

[Lord Fowler]

My Lords, even that figure of course understates the true position. Is my noble friend aware that the Metropolitan Police itself has now said that it has identified the names of 5,800 people in the notebooks of a private investigator who for six years was employed by the News of the World to hack into mobile phones? Is there not now conclusive evidence that some journalists have perverted the traditional role of the press—to expose injustice and wrongdoing—by a total determination to expose private lives? What is needed now is an effective and, above all, independent means to ensure that such abuses never happen again.

[Lord Henley]

My Lords, my noble friend is right when he quotes the figure of 5,795 people who the police have said may—I stress, may—have had their phones hacked. The police stressed that at this stage they cannot give a figure, which is why I gave the other figure of 1,800 people who the police have identified as potential victims, and the 600 with whom they have been in contact. I note what my noble friend said about setting up some independent body as a result of these matters. At this stage, I cannot possibly comment and we must await the outcome of the inquiry by Lord Justice Leveson. When that happens, I am sure that we will act.

[Lord Rosser]

My Lords, when giving evidence recently to your Lordships’ Communications Committee inquiry on the future of investigative journalism, the Culture Secretary, Mr Jeremy Hunt, said that newspapers are likely to come under the auspices of a new regulatory body that is,

“better at enforcing standards of accuracy”,

than the Press Complaints Commission. Can the Minister confirm that this is now the policy of Her Majesty's Government?

--- Later in debate ---

[Lord Henley]

My Lords, my right honourable friend was giving his view correctly to that committee, but I am sure, as the noble Lord is aware, that we cannot make any firm decisions—and it would be wrong to do so—until the Leveson inquiry has concluded. That is what we will do at the appropriate time.

[Lord Soley]

Do the Government have any knowledge of any other newspapers being involved in phone hacking?

[Lord Henley]

My Lords, I do not, but if the noble Lord wishes to provide some information, I am sure that the Leveson inquiry would be grateful. Whether or not the noble Lord’s phone has been hacked, I cannot comment.

[Baroness Bonham-Carter of Yarnbury]

My Lords, does my noble friend not agree that the abuse has not just involved hacking? I sit on the Commons and Lords Joint Committee on Privacy and Injunctions and heard what Hugh Grant said yesterday about the behaviour of the paparazzi. Is it not wrong that, as Sienna Miller told the Leveson inquiry, 10 burly men can pursue a young woman down a dark alley spitting and hurling abuse at her with impunity because they are carrying cameras?

[Lord Henley]

My Lords, again my noble friend makes a very good point and was right to emphasise that this evidence was adduced to Lord Justice Leveson’s committee. No doubt he will consider that and, after that, the Government will—as I said earlier, and I repeat—consider any reports made by the inquiry, particularly where it seeks legislative changes by the Government.

[Lord Mackenzie of Framwellgate]

My Lords, given the emerging evidence of the employment of private investigators by the press involved in phone hacking, can the Minister give us an idea of when the Government intend to license such people?

[Lord Henley]

Again, my Lords, I would not want to take these matters further at this stage. I suspect that I shall repeat the same answer quite a few times during the course of this Question; we want to wait until Lord Justice Leveson has reported.

[Baroness Trumpington]

My Lords, the Minister has answered various points on numbers. How do people know if they are being hacked?

[Lord Henley]

My Lords, that is a technical problem on which I am afraid I cannot assist my noble friend. I am sure that many people throughout the country, and no doubt many Members of this House, think that they may have been hacked. If they think that they have, I suggest that they let the police know and ask them to make appropriate inquiries.

[Lord Brooke of Alverthorpe]

My Lords, is the noble Lord stating that the Government have no interest in what is happening with any other newspapers unless individuals produce evidence themselves?

[Lord Henley]

My Lords, that is nonsense. Of course we have an interest in these matters, but at this stage it is right and proper that the Government wait until Lord Justice Leveson has reported. In the mean time, if any noble Lords or others think that they are having problems and that there has been criminality, I suggest that they get in contact with the police.

[Lord Martin of Springburn]

My Lords, when the BBC acquires ex-directory phone numbers, does it have a responsibility to tell the subscribers of those numbers where it got the numbers from?

[Lord Henley]

My Lords, the noble Lord is going slightly beyond the Question on the Order Paper, but I shall certainly make inquiries for him and write in due course.

[Lord Inglewood]

My Lords, does the Minister not agree that the fact that the Government have set up the Leveson inquiry is proof positive that they recognise that the existing arrangements are inadequate for regulating the press and that something needs to be done to improve matters, the detail of which, as yet, is not clear?

[Lord Henley]

My Lords, as evinced by the number of questions that my noble friend Lord Fowler and others have asked in this House, as well as by questions asked in another place and concerns raised elsewhere, there has been considerable concern about the degree of phone hacking. Quite rightly, the Government responded to that concern and set up the inquiry by Lord Justice Leveson. They will respond in due course.

[Lord Davies of Coity]

My Lords—

--- Later in debate ---

[Lord Maxton]

My Lords, Maxton is the name. Why are this Government quite happy, as is Parliament and as previous Governments have been, to regulate television, radio and even the internet but are not prepared to undertake the statutory regulation of the print media?

[Lord Henley]

My Lords, I repeat what I said earlier: we will consider the results of this report and make the appropriate response at that stage.

[Lord Phillips of Sudbury]

My Lords, does my noble friend accept the gravamen of the Justice report last month—a comprehensive report into hacking of all sorts—that this issue goes far, far wider than the press? Will the Government kindly consider reviewing the Regulation of Investigatory Powers Act to try to bring it up to date and make it effective?

--- Later in debate ---

[Lord Henley]

My Lords, I always take notice of any report produced by a body such as Justice, and we will always keep the operation of RIPA 2000 under review. However, again, that will be a matter to be dealt with at the conclusion of this inquiry.

Protection of Freedoms Bill

Lord Henley Excerpts

Tuesday 6th December 2011 Lords Chamber

[Baroness Hamwee]

My Lords, perhaps I may make some more general points following the comments in particular of the noble Lord, Lord Bichard. I struggled with both the terms “day-to-day” and “close and constant” and rather came to the conclusion that there may not be a snappy phrase that will deal with the issue that noble Lords have identified so powerfully. We may know the situation when we see it, but we may not be able to find a couple of words to describe every such situation about which we are concerned. I was glad to read—noble Lords referred to this—that the Government will provide guidance on the question of supervision. However, the guidance cannot go beyond the legislation.

It troubles me that we may be trying to find a way of putting succinctly into legislation something that will not quite fit. This might be an occasion when we have to be a bit more verbose than we would normally want to be—I do not know; other people’s language skills will be better than mine. However, I was left with the concern that we should not rely on guidance saying something in addition to what the legislation says, because it cannot.

I hope that the guidance which emerges at the end of this process is easier than the language in the Bill. I struggled an awful lot with the double negatives. It will not be a service to those who are working in the field if we cannot produce something that is much easier to follow.

I want to add one other thought which is very much implied, if not explicit, in what other noble Lords have said. Whom does a child trust more: the worker, for want of a better word, with whom he develops a close relationship; or a supervisor who has perhaps not been in a position to create the same trust, because the supervisor is the authority figure and may not be perceived as being on the child’s side?

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

My Lords, I am grateful to my noble friend Lady Hamwee for, in effect, finishing off this debate. She took us back to the general, which is what I want to start off with. I think that it was the noble Baroness, Lady Royall, who was somewhat critical of what we are proposing in this area and quoted a great deal from, I think, User Voice. I was then grateful for the intervention from the noble Lord, Lord Bichard, the author of the Soham report, who reminded the Committee that, as he put it, what had followed his report—the recommendations, if I may summarise them—was not exactly quite as proportionate as he felt it should be. I stress that we are looking for the right degree of proportionality and the right balance in the Bill. That will obviously be difficult to achieve. I am therefore grateful for the chance to address just some of the issues in relation to this amendment.

Sticking with that generality and the quotations that the noble Baroness, Lady Royall, gave from User Voice, I should remind her that there was considerable support for the Bill and the proposals in this area when they came out. I can quote Anne Marie Carrie, the chief executive of Barnardo’s, who said that the Government’s proposals were a “victory for common sense”. She said:

“There is already enough safeguarding in place for people who have unsupervised, substantial access to children”;

and that:

“This approach will make it easier for grandparents, parents and neighbours, who should be able to play an important role in a child’s life without unnecessary red tape”.

There was also support from the Scout Association, Nacro and others—I could go on. The question that we want to address is how to get the right degree of proportionality.

The amendments are very much in three groups. I do not know the intention of the noble Lords who tabled the various amendments, but if it is thought that we might vote on them, I should say that I am fairly sure that the amendments tabled by the noble Baroness, Lady Royall, would not be consequential on Amendment 58. However, we will get to that in due course.

Amendments 58, 61 and 62 were tabled by my noble friends Lady Heyhoe Flint and Lord Addington. I am grateful to them, and to my noble friend Lady Walmsley, for reminding us that my honourable friend Lynne Featherstone and I had an opportunity to discuss this matter with a large number of representatives of the sports and leisure sectors as well as a number of my noble friends at a meeting in the Home Office. There have been subsequent meetings and we have listened very carefully to the arguments presented. I think that we have taken on board some of those concerns.

Obviously one of those concerns is that supervision is very difficult to provide in the context of sport. That is what we want to deal with at this stage. The Bill now requires that we provide statutory guidance in relation to supervision to assist sports governing bodies, and others, to decide on whether a particular employee or volunteer falls within or outside the scope of regulated activity. As we have made clear, we intend to consult on draft guidance in advance of Report. I can assure the Committee that we will include the sport and recreation sector in that consultation. I can also assure the Committee that the guidance will include elements specific to that sector.

The noble Baroness, Lady Royall, asked me whether I could get the response to that consultation out before Report. I appreciate that Report, given the speed at which we are moving, is some time off and getting a response to that consultation might be somewhat difficult. However, we certainly hope to get the consultation out and that will be useful for the House to have a look at in advance of Report.

We do not, in principle, see the need to move away from the notion that where individuals can be properly supervised, then in some circumstances there is no need for their work to fall within regulated activity or for barred-list checks to be made. Proper supervision should help to reduce the risk of improper conduct and of inappropriate relationships developing. Noble Lords have spoken about the dangers in this area. I appreciate that there have been some concerns about what supervision means and whether this will apply, for example, to an assistant sports coach. However, I should say that we are not seeking to define supervision by a title, such as “assistant” or “deputy” coach or trainer. If such roles are working independently of the head coach and not being supervised, they would remain in regulated activity.

This provision is intended to provide additional flexibility for employing organisations and to help ensure that individuals are not dissuaded from volunteering. One of the bodies that commented on this was the Scout Association, which said that it preferred to supervise individuals when they first join the organisation before barred-list checks become necessary. There is of course no compulsion in the Bill for an organisation to provide supervision. Where it is unable to do so, activities will remain regulated and barred-list checks must be made.

My noble friend Lord Addington looked for examples of what would be adequate supervision. This will obviously vary according to where you are and what you are doing. In a classroom or indoor venue, the supervisor should be in the same room for the majority of the time, excepting that they may on occasion need to leave for a short break. In a classroom, a teacher or other adult in a regulated activity should be in the room with the supervised assistant and be able to see their work for most of the time. Matters would obviously be different in an outdoor context, and my noble friend was right to draw on this. On playing fields, one coach or supervisor should be able to supervise an individual on the same or a neighbouring pitch—for example, an assistant football or rugby coach helping with the same match or on a next-door pitch, but not across a vast number of pitches or where activities take place at a considerable distance. My noble friend also gave the example of an assistant coach who might have some special expertise that his superior would not understand. Again, if that were the case, the appropriate checks would have to be made because, I should make clear, the whole matter would be a question of tact and degree according to the facts of the case at any point.

Perhaps I may also say a word or two about the drafting of Amendment 61, because the noble Baroness, Lady Royall, raised a concern regarding the meaning of “recreational”. As drafted, that amendment would not in any event achieve the desired intention. It would not extend the list of establishments to include sports venues. It simply adds sport to the description of work in the existing list of circumstances. Its effect, therefore, is that supervised volunteers coaching sports in schools would be in regulated activity, but supervised coaches elsewhere—paid or unpaid—would not be. In addition—a point queried by the noble Baroness, Lady Royall—it provides no definition of a recreational activity, which could mean that the amendment would inadvertently catch a wider range of activities than intended.

--- Later in debate ---

[Lord Addington]

Perhaps I may come in here to clarify the matter. I was using sport as an example of where you get activity. The noble Lord has started to answer my concern but, although he has gone some of the way in his initial response, I do not think that he has totally embraced the position of control that can be taken on by a coach, even if that coach has a subservient role to the main coaching structure. For instance, if you are a potential shot-putter, you need a strength coach. You need someone to control your diet, your exercise and the way you sleep. I am trying to get at whether that degree of control is within an organisation. The noble Lord is starting to get there but I am just saying that, unless that degree of control in this one sector is addressed, he is going to miss out a lot of things in other sectors.

[Lord Henley]

My Lords, obviously at this stage I cannot define “recreational” as used by my noble friends in their amendments. It is not for me to define it; an explanation will have to come from noble Lords themselves as they move their amendments. The subsidiary point to that—the concerns expressed by my noble friend—may be best addressed by my noble friend Lady Hamwee’s comments when she talked about the difficulty of getting it down to just one or two words. She talked about the need to get this consultation, and the guidance ensuing from it, which is exactly right. I hope that my noble friend now accepts that that is what we are trying to do. That is why I want to make sure that the consultation is out before the next stage of the Bill. I see the noble Baroness, Lady Farrington, twitching to get up, so I shall give way.

[Baroness Farrington of Ribbleton]

Can the Minister give the assurance which I understood his noble friend Lady Hamwee was seeking? He used the term “proper supervision”. I understood the noble Baroness, Lady Hamwee, to say that there ought not to be anything stronger in the guidance than the wording in the Bill defining “supervision”. It would be very helpful if the Minister could give an undertaking that that fear is totally unfounded and ensure that his sense of “proper supervision” is defined as much in the Bill as in the guidance.

[Baroness Hamwee]

Perhaps I should see whether I can make myself absolutely clear. My concern was that primary legislation must trump guidance and that guidance cannot go further than the legislation. That is what I was trying to express.

[Lord Henley]

The noble Baroness, Lady Hamwee, is a lawyer and she has expressed exactly how it should be. Obviously guidance does not go beyond the legislation. That is one reason why I shall resist the amendments put forward by the noble Baroness, Lady Royall, which ask for close and constant supervision, because we think that that goes too far. However, I shall address that in due course. The important point is that we have to get this guidance right. To get the guidance right, we have to get the consultation right, and I hope to have the consultation available before we reach Report.

Perhaps I may now deal with the noble Baroness’s Amendments 59, 60, 63A, 64 and 65. As always, we want to strike the right balance. Balance is the new word that I have learnt in the Home Office, and it is very important in this Bill that we get that right. I think it was the theme behind what the noble Lord, Lord Bichard, said. It is a question of proportionality. Our definition in this provision insists that it must be substantial. For example, an occasional, or even weekly, meeting between the supervisor and the supervised would not be sufficient.

The noble Baroness’s amendments would change the wording to “close and constant”, which would render the definition of supervision unworkable and go against the Government’s intention of having more proportionate disclosure and barring arrangements. If you think about it, the words “close and constant” are pretty severe. I gave the example of the classroom environment, and “close and constant” does not even allow leaving the room occasionally. They would in effect mean that the work of a volunteer working in a sports club under the supervision of a qualified sports instructor would become regulated activity if that qualified instructor left the room at any stage, because the supervision would then not be constant. That goes too far and undermines our proposals to scale back disclosure and barring to common-sense levels by imposing an unrealistically high test for supervision.

We believe that the Bill as drafted, coupled with the statutory guidance that we will publish following the consultation, will produce the right result in setting the boundaries of regulated activity. For that reason, when we get that consultation out, I look forward to comments from all around the country and from all noble Lords, and I hope that the noble Lord, Lord Bichard, will feed his experience into it.

Finally, I turn to the amendments tabled by my noble friend Lady Walmsley. Amendment 63 seeks, in effect, to bring all those who work in FE colleges within the scope of regulated activity. I should first stress that all paid teaching and non-teaching staff in establishments, including further education colleges, that wholly or mainly provide full-time education to children will remain within regulated activity and therefore must undergo a barred list check as part of their pre-employment checks. In addition, the unsupervised teaching, training, instruction, care or supervision of children in further education institutions will remain a regulated activity, even where such an institution provides education mainly to adults.

Amendment 63 would go further by bringing into regulated activity all work by any staff in further education colleges providing education to even a small number of children where staff have the opportunity for contact with children. Under the current scheme, such work is “controlled activity”. Controlled activity is to be abolished under Clause 68. We believe it is disproportionate and unnecessary to require such individuals to be subject to the same level of checks as those working in an institution wholly or mainly for the full-time education or care of children, for example in a primary school or a nursery.

The Government do not consider it proportionate for the state to require or allow barred list checks on activities that are currently defined as controlled activities. Such activities generally entail only incidental contact with children. I question whether all colleges would really welcome a duty to check hundreds of staff just because the college takes on, for example, half a dozen 17 year-old students.

[Baroness Hamwee]

Will the Minister move away from the wording of this amendment—I take the point he makes about it perhaps being too blanket in its coverage—and address the point about who is a child for the purposes of the protection that we are seeking to apply? I think that is what underlines the points made by my noble friends in addressing this. Technically, this may not be right, but they are concerned about the subject of the protection.

[Lord Henley]

My Lords, I understand the concern, and I think it might be necessary for us to have further discussions on this outside the House. I think my noble friends understand the importance of proportionality—I use that word again. The example I was giving when my noble friend interrupted me was about a college that takes on half a dozen 17 year-olds being affected. It might be that if it was half a dozen 14 year-olds, things would be different. It is a question of balance which, again, we will have to look at. I was about to say that the amendment goes too far; my noble friends agree that it goes too far. They will not press it, but obviously there might be scope for further discussions in due course.

Amendment 66 could also be very wide-ranging in its effect. It sets out that a regulated activity provider may decide whether other activity that it carries out is analogous to regulated activity. It also creates a new duty on the Disclosure and Barring Service to provide information that would otherwise be provided only in respect of regulated activity for any such activity that the provider decides is similar to regulated activity. We have stated that we do not think it is right to provide barred list information for activity that is not regulated activity. We have set out in Clause 64 what activity should be defined as regulated activity in relation to children. This amendment would in effect give regulated activity providers the ability to define any activity as similar to regulated activity and request barred list information from the Disclosure and Barring Service; for example, they could designate someone who has merely the slightest contact with children in a sport or recreation setting, or an employee providing first aid as an ancillary part of their job.

We do not think that Amendment 66 does what it says on the label, as it were. Again, I might have misunderstood what my noble friend is getting at with that amendment. If she would like to have further discussions, I am prepared to do that, although the last time we had discussions it resulted in her bringing forward this amendment, so it does not necessarily always help.

[Baroness Walmsley]

Perhaps my noble friend the Minister will allow me to clarify my thoughts on this matter. The main point I am trying to make is that we are having very great difficulty defining what is meant by the level of supervision that the Government want to put outside regulated activity. The point I am trying to make is that the best people to decide the roles that should correctly be within regulated activity are the organisations themselves. They know whether those roles give the person the opportunity to develop that relationship of trust with the child, and no civil servant sitting in Whitehall can possibly do that. The very fact that we are having such difficulty defining the level of supervision that we mean is an indication that I am right about that.

[Lord Henley]

It may or may not be an indication that my noble friend is right, but I think that further discussions, even if they do result in further amendments, might be appropriate.

[Baroness Royall of Blaisdon]

My Lords, it is absolutely right that the noble Lord has offered to have further discussions with the noble Baroness about this amendment, and I welcome that. Clearly we are not going to have another opportunity to discuss my amendments to do with “close and constant”. The noble Lord said that “close and constant” would be too prescriptive in the Bill and would destroy the balance he is seeking to ensure. However, after the noble Lord, Lord Bichard, expressed disquiet about the balance in the Bill, will the Minister agree to have further discussion with us about the words “close and constant”? The noble Lord says that the consultation will be launched but that he will not be able to provide the Government’s response to the consultation before Report. I am slightly alarmed. The consultation is to be welcomed, but then we are going to be expected to decide what is going to be in the Bill before we know the Government’s response to the consultation, and that seems a bit topsy-turvy to me.

[Lord Henley]

We can have a meeting if the noble Baroness wishes; my door is always open. I just think that “close and constant” goes far too far and more or less negates the point of what we are trying to do in this area. Obviously, we would also listen to what the noble Lord, Lord Bichard, has to say on these matters, and I will give way in a minute; we welcome his experience. I remind the noble Baroness, however, that he was not totally uncritical of what followed his report and what was done; if I can paraphrase the noble Lord, he said it was not quite as proportionate as it might be.

[Lord Bichard]

My problem, which is not yet being addressed, is this: we have checks to ensure that inappropriate people do not get access—particularly to young children because they are vulnerable. That is why we have the checks. The Government’s new proposals seem to be based on the belief that supervision—whether it is close, constant, day-to-day or whatever—can make an individual who is inappropriate appropriate to work with young people. That is an issue about which I have serious doubts, because I do not believe that supervision can ever deal with that issue conclusively, not least because you can supervise somebody on a day-to-day or constant basis in his work, but that does not stop him grooming the young person and meeting them at the weekend, outside of work or the activity. Therefore, I am worried that we seem to be accepting—on all sides of the House—that coming up with a definition for supervision deals with this problem. I am just not sure that it does. The Minister may want to comment on that; I certainly believe there is room for further discussion.

[Lord Henley]

The noble Lord seems to be suggesting that we get rid of the idea or the concept of supervision in its entirety. I simply do not accept that. I think there is a role here for making it easier for people to get involved, with the appropriate degree of supervision where necessary. I take it that the noble Lord does not agree with me on that and it might be that the noble Baroness, Lady Royall, does not agree with me on that: in which case, we will have to differ. We on this side see a role—and so do many other bodies outside—for the appropriate supervision to allow people to take on such a role. For that reason, I am not sure that a meeting on this matter would necessarily be fruitful.

[Baroness Farrington of Ribbleton]

There is a world of difference between close and constant, and occasional. There is a further concern that could be raised about those who are deemed to be in supervision. Were things to go wrong—and in the best of all possible worlds, there will tragically be such occasions—we must consider those who will be deemed to have been in a supervisory capacity, where they must rely on their judgment about the individual. Some people have referred to them as manipulative: they are deadly.

Furthermore, I refer to a quote in connection with a case involving a member of the Scouts. When I spoke to a young person who had come into contact with this predator, the young person said:

“We worked out that he was the one who looked for the child with no friends”.

I am concerned that if in the future we are going to rely on somebody being in a supervisory capacity, they need protection from any allegation at a later stage that they failed to supervise.

[Lord Henley]

My Lords, I think that we are moving away from what the amendments originally were about. There now seems to be a general attack on any idea of supervision at all. I am making it clear that we believe that supervision is appropriate but that it is just a question of getting that balance and proportionality right. For that reason, we think that we have got it right and that is why we will consult on the detail, which, as my noble friend Lady Hamwee made clear, was a matter more appropriate for the Bill. I do not think that I can add much more at this stage. I have dealt with the three subgroups of amendments within this group. I very much hope that my noble friend Lady Heyhoe Flint will withdraw her amendment and that the other amendments will not be moved.

[Baroness Heyhoe Flint]

I thank my noble friend for his response. Having lobbed the pebble in the water, it has drawn up several matters that I had not envisaged in my amendment. I am encouraged that the Minister has listened to my pleas, which perhaps is rather selfish, and has given assurances concerning governing bodies and further education. Working on the premise that it is better to be safe than sorry and having had the assurance that there will be further guidance and consultation, which I am sure will be balanced and proportionate, I beg leave to withdraw the amendment.

--- Later in debate ---

[The Lord Bishop of Newcastle]

My Lords, I would be grateful if I could ask the Minister for clarification. As I understand it, the intention is that the vetting and barring scheme will continue, albeit in a more scaled-down way. I understand that the current legal requirement to refer for possible barring any employee or volunteer who is deemed to represent a risk to children will continue, but the scope has been narrowed so that people will be placed on the barred list only if the ISA has reason to believe they are, have been or might in the future be working in a regulated activity. Yet at the same time the definition of regulated activity is being narrowed.

I ask the Minister if this means, for example, that a person may be barred from teaching, a regulated activity, but not from working as a voluntary teaching assistant, which is a non-regulated activity, if there is supervision; and that, further, any CRB check for the voluntary teaching assistant would not disclose that the individual is barred from regulated activity. I hope I am wrong in that—surely that cannot be right. Obviously this limitation, if it is enacted, would have very serious risks for the safe recruitment of people, not least within church and, indeed, other circles.

[Lord Henley]

My Lords, I thought that the noble Lord, Lord Rosser, had managed to silence the entire House, but the right reverend Prelate proved me wrong. I hope I will be able to respond to the remarks of the right reverend Prelate in due course.

I am grateful to the noble Lord for his explanation of Amendments 68 and 69, which make three substantive changes to the barring arrangements. First, they would reverse the change in Clause 67, which limits bars to those people who have been, are, or might in the future be engaged in regulated activity. The effect of this amendment would be that the barring regime would continue to extend to many people who do not work with, and do not intend to work with, children or other vulnerable groups. For example, a lorry driver or an office worker who has not worked with vulnerable groups and does not intend to would be barred from such work. We do not think that this fits with the purpose of the scheme and it does not accord with our aim of reducing the barring arrangements to common-sense levels.

Bars should continue to apply to those who have been engaged in regulated activity or who are likely to be so in the future. If an individual applies for an enhanced criminal record certificate or a barred list check, indicating that they may seek work in regulated activity, any automatic barring offences will be disclosed and referred to the barring authority at that point. In addition, enhanced criminal record certificates will continue to be available to employers of those working with children or vulnerable groups—including volunteers—and will provide information on previous criminal offences.

The second of the three changes that this amendment seeks to make concerns the category of offences that lead to an automatic bar, in relation to which representations can be made. Under the current arrangements, such representations can be made only after the person has been placed on a barred list. As a result of Clause 67, individuals would be able to make representations before the barring decision is made. Amendment 68 seeks to reverse that change, such that representations would still be made retrospectively. The provision in Clause 67 was made in response to a recent court ruling; but even if that were not the case, it seems to be a matter of basic fairness that representations about a decision should be considered when there is still a chance to influence that decision. Currently, someone may be barred, and even if that bar is revoked, they may already have been denied employment as a result.

The third change is that representations in both automatic and discretionary barring cases would be accompanied by the right to oral hearings. I do not consider that to be necessary. We have to remember that the Independent Safeguarding Authority is not a primary fact-gathering organisation but depends on information that comes from employers, regulators and others for its evidence. The person concerned may then submit representations about any or all of the evidence, which the ISA will evaluate fully. Once, having assessed all the evidence and the representations, it has determined whether the person ought to be barred, there is a final safeguard by way of recourse to the Upper Tribunal on a point of fact or law. Oral representations are not prevented under the current legislation, and the ISA will consider all requests on a case-by-case basis. We can debate the issue of oral hearings, but it seems inconsistent that the noble Lord wants to make this change while also seeking to revoke that more basic procedural change on allowing representations before the barring decision has been made.

Amendment 69 proposes that information about whether somebody is on the relevant ISA barred list should be made available on all enhanced criminal record certificates, regardless of whether the post falls within the barring regime. The Government’s position is that although there is a case to make such information available for a few specific cases falling outside regulated activity—such as applicants to foster or adopt a child—barred list information should otherwise be made available only for positions falling within regulated activity. This represents a very simple but important principle: barring by the ISA is about regulated activity and barring decisions are made in order to prevent people, by law, from working in regulated activity. They are not intended as a broader advisory tool for employers. An employer providing regulated activity needs to know if someone is barred, because they are then required by law to refuse that person’s job application. However, it is not relevant for an employer to know this when they are seeking to engage someone in non-regulated activity. Such information would only tell them that the person was barred from another area of work and making it available would be detrimental for potential employees—it is very likely that an employer in such a situation would refuse employment because they saw the word “barred”, even though the person may not represent a risk to any vulnerable people in that job. I do not believe that is a new principle. Under the existing arrangements, barred list information is not generally disclosed for positions falling outside regulated activity, so I am a little surprised that the noble Lord now advocates such a change. The changes we are making are to the scope of regulated activity.

The right reverend Prelate asked whether a person barred from teaching, but not from being a teaching assistant, could still be allowed to work. If the supervised volunteer was not on the payroll of the school, it is possible that that supervised volunteer could be barred from regulated activity and could still undertake this not-regulated activity. CRB checks and references, plus the supervision, should provide the necessary safeguard. Bars have only ever been applied to the regulated activity. That was the case before and will be the case in future. The answer, if I have got it right, is very simply that the teaching assistant could work but that obviously there would be adequate supervision —a matter that we discussed under an earlier amendment.

I hope that with those explanations, the noble Lord will feel able to withdraw the amendment. If not, I leave that matter to him.

[Baroness Farrington of Ribbleton]

My Lords, I hope that the Minister will take away and think about the fact that the degree of supervision that the person in the supervisory capacity feels it necessary to give may vary according to the degree of knowledge that they have about the background of the person concerned. The right reverend Prelate raised a very important issue. I go back to my point about the duty and responsibility of those in the supervision capacity.

[Lord Henley]

I have a sneaking feeling that the noble Baroness just does not like the idea of supervision coming in at all and would like to see yet further, more stringent measures being applied. It is a very good way in which to make sure that the appropriate checks and balances can be found. There is the appropriate degree of proportionality and there will be the appropriate supervision, which we will consult on in due course.

[Baroness Farrington of Ribbleton]

The Minister misunderstands my position. My primary concern is the care of children, which I share with everybody else involved with this Bill. My secondary concern is that I agree with the principle of supervision, provided that I know what it is.

[Lord Henley]

I think that I can agree with the first point made by the noble Baroness entirely. As for the second point, that is what we have to get right, and that is why we are going to consult and produce the appropriate guidance. But that is not something that we can get down in the Bill.

[Lord Rosser]

My Lords, I noticed the response that the Minister gave to the right reverend Prelate, and I think that the short answer is that the concerns expressed by the right reverend Prelate would be largely addressed through the acceptance of the amendments that we have tabled and that the Minister has declined to accept.

The Minister raised the issue of the appeal. Clearly, the Government’s intentions about appeals do not appear to meet the recommendations of the JCHR. He raised the query that, under the Government’s proposal, people could appeal when informed of the ruling or the decision and before the implementation. I should just make clear our stance, which we have taken throughout—that we want people automatically barred if they commit a serious offence and then to appeal if they feel that the decision to bar them has precluded them from taking up a particular position. We come at it from a different angle from that of the Minister.

There is clearly a considerable difference between us, and it came out in the first group of amendments that we discussed and again in this group. We will need to reflect on the response that the Minister has given before deciding whether to pursue the specific issue again on Report. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Sharkey]

I thank the noble Baroness, Lady Royall, for tabling this amendment, whose objectives I strongly support. As noble Lords have already noted, the situation relating to stalking in England and Wales is entirely unsatisfactory. It is clear that the offence of harassment is not an effective way of dealing with the problem of stalking. It is not effective for the protection of possible victims; it is not effective for the successful prosecution of offenders; and it is not effective in the delivery of appropriate punishment for those who are found guilty.

A recent survey conducted by the members of the National Association of Probation Officers showed that the overwhelming majority of victims were in constant fear and many were physically injured. Most victims claim that there are a number of incidents before they feel they can go to the police. Often their complaints are not properly investigated, and the perpetrator’s behaviour escalates over time if there is no criminal justice intervention or treatment.

It appears that stalking behaviour is simply not recognised by the majority of professionals who have to deal with the cases. Probation staff are concerned that when sentences are handed down they are often too short for rehabilitation or treatment to occur, or even to match the gravity of the offence and its effect on the lives of victims. We should not allow things to continue as they are. The suffering caused to victims is often harrowing and sometimes life-destroying.

The current methods for dealing with the problem are clearly inadequate. However, as noble Lords have pointed out, there is an obvious way forward, which is to learn from the experience in Scotland. As noble Lords have indicated, Scotland chose not to introduce a version of the Protection from Harassment Act 1997—currently the law in England and Wales—on the grounds that the Act did not transfer powers into practice. Instead, a new law, on which this amendment is based, was passed in December 2010 creating a specific offence of stalking and offences of threatening and abusive behaviour. This legislation has the support of the police, who have themselves adopted new operational guidelines to ensure proper awareness of stalking and harassment. There are clear signs of the success of this Act, even at this very early stage.

I acknowledge that the Government take this matter extremely seriously, and I know that the consultation on the issue runs until 5 February. It is important that we learn from it. Nevertheless, I urge the Minister to take account of the strong views expressed today and the terrible plight of the victims of stalking and not to delay legislation on this issue one moment longer than is absolutely necessary.

[Lord Henley]

My Lords, I note what my noble friend Lord Sharkey and all other noble Lords said. I think it was the noble Lord, Lord Dear, who said that we should take away all the comments. My noble friend said we should look at this and not delay legislation. As he reminded us, we have a consultation that runs to 5 February. Obviously, we want to see the result of that consultation before we move much further, but I am grateful to the noble Baroness for explaining how her clause works and allowing us the opportunity to debate these matters.

As the noble Baroness will know, my right honourable friend the Home Secretary’s ambition, and the Government’s ambition, is nothing less than ending all forms of violence against women, including stalking. I am again grateful to my noble friend Lady Brinton for reminding us that stalking is not committed just against women and that some 20 per cent is against men. It is an offence that affects and can be devastating to many lives, and that is why we included stalking as a priority in our Call to End Violence against Women and Girls strategy published last November and why we followed it up with specific actions to tackle stalking in our action plan published this spring. It is why my right honourable friend the Prime Minister in response to a Question said:

“It is important that we take forward the work that the Home Office and the Ministry of Justice have done in looking at a proper, separate offence for stalking and recognising that there is a gap in the current law that we should fill, because there are people who are not getting the protection and help from the police that they need”.—[Official Report, Commons, 23/11/11; col. 292.]

The noble Baroness is seeking to strengthen the law on stalking and, as I said, there may be a case for that, but we should remember that we have that consultation and we want to look at it in some detail. There might be a degree of unanimity about what we can do and that at a later stage of the Bill—I do not know—something might be possible. That is a matter for the future, but before I go into some of the detail about what we have at the moment and what the noble Baroness’s amendment does, I think it is important to get that on the record.

I would like to make one comment that I think is relevant and to deal with the question of police training and training for others that was raised by the noble Baroness, Lady Howe, and my noble friend Lady Brinton. It is important that the right attitude exists within the police and those who have to deal with these things. We recognise that in the past that was not always the case. The Home Office has been working very hard with ACPO, the Crown Prosecution Service—which is important in this—the Ministry of Justice and, equally importantly, various stalking charities to ensure that best practice guidance has been disseminated. We are trying to do that through a series of regional events to make sure that how they must deal with these matters gets down to the police at the grass roots. ACPO now thinks that 65 per cent of forces currently have officers trained in risk assessment in this area, and it hopes to get that up to all forces by the end of the year, so awareness is improving and training will go on, but I recognise that there are concerns in this field.

I shall go back to some detail because I would like to get this on the record so that the noble Baroness can understand where we are with the existing Act—it was possibly the first Act that the previous Government passed, with the exception of that rather pernicious Act, which I was involved with, that abolished grant-maintained schools, but we will not deal with that at the moment. Probably one of the earliest Acts they passed was the Protection from Harassment Act. That was brought into force primarily to tackle stalking, but extends to any other persistent conduct that causes another person alarm or distress.

--- Later in debate ---

[Lord Henley]

My noble friend makes a very good point and this is something we should look at. It is obviously early days for the Scottish legislation and we would obviously want to examine that. The point I am making is that it is covered by the 1997 Act; the question is whether there is sufficient awareness. Whether one should legislate just to increase awareness is another matter.

That said, as I hope I indicated in my opening remarks, the Government are committed to ensuring that we do all we can to protect victims of stalking and bring perpetrators to justice. I repeat that we introduced the consultation that has been referred to by myself and other noble Lords on 14 November to ask for views on how we can protect victims of stalking more effectively. The consultation includes a question on whether there should be a specific offence of stalking. We are keen to hear from anyone who has views or evidence in relation to this issue and will consider all submissions carefully before deciding on the next steps.

However, I hope that in light of that consultation and the work we are doing, in light of the commitment that I am making on my own behalf but also on the behalf of my right honourable friend the Home Secretary, and in light of the remarks that I repeated from the Prime Minister, the noble Baroness will agree that it might be premature to go down the route of immediately bringing in her amendments, and I respectfully ask her to consider not doing so in advance of the conclusion of the consultation, which ends in early February next year. I hope that I can assure the noble Baroness that this is something that my right honourable friend is keen to act on as quickly as is appropriate.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to all noble Lords for this excellent if rather short debate on stalking. It is a very important debate and I pay particular tribute to the courage and honesty of the noble Baroness, Lady Brinton. The evidence that she gave today is deeply shocking, both in the treatment that she and her colleagues received but also the lack of support and advocacy over this whole issue. Of course, I also pay tribute to Ann Moulds in Scotland, who was mentioned by the noble Baroness, Lady Howe.

We have received mixed messages from the Minister today. He sort of expressed sympathy—indeed, he quoted the Prime Minister himself, who said that there is a gap to be filled—and in some ways he recognised that the current law is inadequate. However, when he went on to talk about the law as currently constituted, I think he was somewhat sceptical of the need for a new law. He said that the Section 4 offence—putting a person in fear of violence—was adequate. However, this is very rarely used by the police, and it is very difficult to prove it and to charge people. Sentences currently tend to be very few and far between and for a very short amount of time. In 2008, 839 people were found guilty under Section 4, but only 170 were given custodial sentences. It is clear from everything we have heard this afternoon that there is a gap in the law that needs to be filled.

I hear from all the comments around the Chamber—from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dear—that there may be questions about the wording of my amendment. I also know that the Government’s consultation is taking place at present. It might seem reasonable to say, “Yes, of course, I am prepared to wait until the end of the consultation”. What bothers me is that, as the consultation is going to end in early February, the Government may well then say, “It is going to take us a couple of months to respond”. By that time, some time in March, this vehicle that we have before us—a Bill going through Parliament—will have passed. The bus will have gone by, and we will then have to wait for perhaps another year for a law to be on the statute book, by which time more women and possibly more men may have been killed because they were victims of stalking. I do not think that I am prepared to wait for that long.

I ask the Minister to consider two options. The first is delaying the start of the Report stage, or this part of the Report stage, until we have had the responses to the consultation. The Government might then agree to do a swift turn-around of that consultation so that by the end of February, we could debate an amendment which took into consideration the results of that consultation. If the Minister is not prepared to give that assurance, I will work with noble Lords from all around the House to craft a suitable amendment to bring back on Report, which would at least take into account the evidence of the people’s inquiry, which I understand will report at the beginning of January. I would then seek to bring forward an amendment on the basis of the evidence brought forward by that inquiry.

[Lord Henley]

I cannot give the total assurance that the noble Baroness would like to have from me, but obviously we will work in the way we normally do—with great speed, as she knows full well—to do whatever we can. All I can say is that I cannot bring forward the end of the consultation beyond 5 February. How quickly we can work after that will be another matter, but we will do what we can.

[Baroness Royall of Blaisdon]

I well understand that, but I will be seeking an assurance in writing from the Minister. If we are going to have Report stage in January, I will bring forward an amendment then—

[Lord Henley]

The noble Baroness knows full well that Report is unlikely to be reached in January. We still have not completed the Committee stage; we are not going to complete it this side of Christmas. We still have two days of this Bill after Christmas. We then have to have a two-week gap between those two days in Committee before Report. The noble Baroness can do her maths and work out that the Report stage will not be with us for a few weeks.

[Baroness Royall of Blaisdon]

I struggled with O-level maths, as is apparent. In that case, I hope that when we reach the Report stage in February, the Minister will have had an opportunity to respond to the consultation. If that is not the case, then on the basis of the other evidence which we will have had before us, I will bring forward an amendment and will certainly move it at that stage. I am grateful to all noble Lords who have contributed, and I beg leave to withdraw the amendment.

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Moved by

[Lord Henley]

71: Schedule 7, page 145, line 8, leave out from “nails” to end of line 9

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Moved by

[Lord Henley]

73: Clause 79, page 70, line 38, at end insert—
“(3) After section 120AB of the Police Act 1997 (procedure for certain cancellations or suspensions of registration) insert—
“120AC Registered persons: information on progress of an application
(1) The Secretary of State must, in response to a request from a person who is acting as the registered person in relation to an application under section 113A or 113B, inform that person whether or not a certificate has been issued in response to the application.
(2) Subsections (3) and (4) apply if, at the time a request is made under subsection (1), a certificate has been issued.
(3) In the case of a certificate under section 113A, if it was a certificate stating that there is no relevant matter recorded in central records, the Secretary of State may inform the person who made the request that the certificate was such a certificate.
(4) In the case of a certificate under section 113B, if it was a certificate—
(a) stating that there is no relevant matter recorded in central records and no information provided in accordance with subsection (4) of that section, and(b) if section 113BA(1) or 113BB(1) applies to the certificate, containing no suitability information indicating that the person to whom the certificate is issued—(i) is barred from regulated activity relating to children or to vulnerable adults, or(ii) is subject to a direction under section 128 of the Education and Skills Act 2008 or section 167A of the Education Act 2002,the Secretary of State may inform the person who made the request that the certificate was such a certificate.(5) If no certificate has been issued, the Secretary of State must inform the person who made the request of such other matters relating to the processing of the application as the Secretary of State considers appropriate.
(6) Subject to subsections (2) to (4), nothing in this section permits the Secretary of State to inform a person who is acting as the registered person in relation to an application under section 113A or 113B of the content of any certificate issued in response to the application.
(7) The Secretary of State may refuse a request under subsection (1) if it is made after the end of a prescribed period beginning with the day on which the certificate was issued.
(8) In this section—
“central records” and “relevant matter” have the same meaning as in section 113A,
“suitability information” means information required to be included in a certificate under section 113B by virtue of section 113BA or 113BB.
(9) Expressions in subsection (4)(b) and in the Safeguarding Vulnerable Groups Act 2006 have the same meaning in that paragraph as in that Act.””

[Lord Henley]

My Lords, in moving Amendment 73 I shall speak also to Amendment 82. Within this group we shall also consider Amendment 75, tabled by my noble friend Lord Addington, and Amendment 75A, in the name of the noble Baroness, Lady Royall, and others. It might assist the Committee if I first set out what Clause 79 intends to do before speaking to the government amendments in this group, as this is the first amendment in Chapter 2 of Part 5 of the Bill.

At present, a criminal record certificate is simultaneously sent to the individual applicant and to the registered body that countersigned the application, for example an employer or sports governing body. This means that the employer or voluntary organisation gets to see any conviction or other information included on a certificate before the individual applicant has an opportunity to contest the accuracy of any conviction information or the accuracy or relevance of any non-conviction information. The Government’s independent adviser for criminality information management, Mrs Sunita Mason, concluded that this approach was unfair to the applicant. We agree, as indeed does the Information Commissioner. Clause 79 therefore provides that henceforth a criminal record certificate should be sent only to the applicant. This allows the applicant to review and, where they deem it necessary, challenge any information on the certificate before it is passed to an employer, prospective employer or voluntary organisation. This change will also allow the individual to approach a prospective employer and provide background about why a particular record exists or provide further explanation or context that might not be apparent directly from the disclosure.

Some sports governing bodies and voluntary organisations, such as Girlguiding UK, have expressed concern about the impact of this change on their recruitment processes. I was able to hear about these concerns at first hand when I met a delegation of bodies referred to in the first amendment led by my noble friend Lady Heyhoe Flint, and I know that yesterday she had further meetings of a constructive nature with officials in my department. I can assure your Lordships that in implementing this change, we want to minimise any disruptive effect it may have on current recruitment processes. Having listened to the representations from the England and Wales Cricket Board, the Football Association, Girlguiding UK and others, we recognise that Clause 79 as originally conceived did not get that all-important balance right, which I have referred to on a number of occasions.

We believe that the government amendments in this group address the concerns that have been raised. Amendment 73 provides a clear legislative basis to enable a registered body to track the progress of an application online and be informed about its status. This tracking facility would also enable the registered body to ascertain whenever a certificate is clear: that is, that it contains no convictions or other police information. This is a significant point, as currently some 92 per cent of criminal record certificates are clear, so such a facility will ensure that in the overwhelming majority of cases the recruitment process can proceed with confidence, even if there is some small delay in the certificate being sent by the applicant to the registered body. Government Amendment 82 ensures that the same arrangements will apply to the up-to-date arrangements.

For the one in 10 cases where a criminal record certificate is not clear, the registered body will know the date on which the certificate was issued and, as such, will be able to take appropriate follow-up action if the applicant does not provide a copy of the certificate within a few days of that date. I should stress that there is no reason why sports governing bodies and others should not continue to run their recruitment processes from a central team. It follows that there is similarly no reason why these changes should require the local football coach or scout leader to become involved in individual recruitment decisions.

I also want to allay concerns that this change will put children at greater risk. That is absolutely not the case. Where a position falls within the scope of regulated activity the employer or voluntary organisation will be obliged, as now, to undertake a barring check before a person takes up that position. In any other case—that is, where the position does not fall within the regulated activity—it will be for the employer or voluntary organisation, again as now, to undertake a proper risk assessment and consider whether it is safe for a new employee or volunteer to be given supervised access to children before all the appropriate vetting processes have been completed.

Having spoken to the two government amendments, the first of which I will move formally in a moment, I will wait to hear what my noble friend Lord Addington and the noble Baroness, Lady Royall, or perhaps the noble Lord, Lord Rosser, have to say about their amendments before I respond to them. I beg to move.

[Lord Addington]

My Lords, the amendment tabled in my name and that of my noble friend Lady Heyhoe Flint addresses a concern that has been raised by the major sporting bodies. As the Minister said when speaking to his own amendment, there is a concern that the central recruitment process, which they are happy with and reasonably confident about, would in effect be reduced in power by the fact that there will now be an individual process.

By bringing forward Amendment 73, it is clear that the Government have been listening to an extent, but the major sporting bodies are still worried. They are concerned that the process being proposed by the Government, even with the tracking facility described by the noble Lord, will allow the way in for certain types of fraud and pose problems of individual disclosure that will affect the volunteering process. There is also a fear that the individual presentation of a certificate will get in the way of a centralised system that has become used to and confident about dealing with situations where, if there is a disclosure on a criminal record certificate that does not affect an individual’s ability to conduct a voluntary activity, it will actually not be disclosed. Such a disclosure might involve long expired convictions of a criminal nature that have no effect on the individual’s voluntary coaching activity. Offences such as those acquired after Saturday night boisterousness or other minor offences against property that go back a long way might become relevant. That is one of the problems the sporting bodies have with this. For instance, some 15 per cent of applicants into football have these types of convictions, or perhaps even more serious ones, but they are certainly not regarded as being that relevant to the safeguarding of individuals.

Also, although the Minister thinks that he has dealt with this, there are still concerns about there being a built-in process of delay—potential stalling. Stalling might come down to the volunteering. One example is the volunteer who has only just applied for this because they have increased their position in an organisation, they have been associated with the club for a long time, or they are an ex-player who has come back in a coaching role. That person makes a presentation to that club, goes to the central body and starts to stall. This is a person who is intent on doing something bad. How does one chase them up? When do you know that you should do something? When does a central authority know it should start chasing? We propose a maximum two-week delay between the application coming through and being informed that something has gone on.

That gives a timeframe, which addresses one of the major concerns about inaccuracy on those applications. It is said that only 0.06 per cent of all applications are wrong, so we have something here that involves a very small number. A two-week delay before having to make this announcement would give you a chance to look at this and say that there was a mistake. It would give you a finite period during which you can find out what is going on. It would remove from someone the responsibility to have to stall so that the person does not have access to the positions of authority that we discussed earlier. This is what the application process is for.

Sports governing bodies are very concerned to have a system that works and that they are confident about. That system is being undermined and interfered with, maybe not as much as the Government’s amendment initially proposed, but they are still concerned. I look forward to hearing what the Minister has to say.

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[Lord Henley]

My Lords, the first point I had better make clear—as I sensed a degree of doubt in my noble friend Lord Addington’s amendment—is that the centralised system will still be there. I hope we made that clear to the various bodies that he and various other noble Lords brought to the Home Office to discuss these matters. I started off finding it rather difficult to understand precisely what his and my noble friend Lady Heyhoe Flint’s concerns really were. He talked about the possibility of individuals stalling. I suppose he was trying to make a “the cheque’s in the post” type of argument, which is probably one of the commonest lies we come across—the constant delay of one particular individual. I honestly do not think that concern is there, because of the various safeguards that I want to get built in.

I also want to make clear the problem with the two amendments—which are broadly similar but slightly different—and why they are not necessary and are possibly too absolutist in insisting that something should happen after precisely 10 days or after precisely 14 days. I am concerned that it undermines the core principle that underpins this clause. I agree that there should be an expectation on the recipient of a criminal record certificate to decide quickly whether to dispute any information on that certificate. However, that may not always be feasible, for perfectly valid reasons such as that the person concerned is on holiday or unwell. There could be other reasons behind it. These amendments make absolutely no allowance for such situations. As soon as the clock has elapsed, a copy of the certificate has to be issued to the registered body.

Amendment 75 also seems to assume that any disputes would be resolved quickly. I know noble Lords all say this involves only a very small number of people—nought point whatever the figure is—but it is a number of individuals and it concerns their individual liberties. That is something that we should be aware of. Although almost 98 per cent of disputes, I understand, are resolved within 21 days, some inevitably take longer and Amendment 75—and, I imagine, Amendment 74 —makes no allowance for this. I also add that the changes we are bringing in with the new system of portable criminal record certificates will substantially reduce the number of new certificates in the system, perhaps by as much as 50 per cent once the new system matures. The whole aim of these changes is to enable, for example, a teacher, classroom assistant or whoever has obtained a criminal record certificate for employment purposes to take that certificate along to the local football club, Scout group or wherever he wants to work. In such circumstances, all that the voluntary organisation would need to do is to check the existing certificate against the online system. There it will be told immediately whether that certificate is the most recent and whether there is any new information; if there is none, a decision could be taken there and then to decide whether to accept the person as a volunteer. I believe that that will significantly speed up the process for voluntary organisations in the great majority of cases. Given this new way of working, it would simply no longer be appropriate or necessary to issue a fresh certificate if someone takes up a secondary role working with children or vulnerable adults.

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[Lord Rosser]

I notice that the Minister said that he would continue discussions with his noble friend and sporting organisations. Does that mean that he does not intend to discuss it with ourselves on this side, even though we have tabled a very similar amendment?

[Lord Henley]

The noble Lord has taken offence because I accidently used the words “noble friends” and did not include the entire House. I said that I would write to everyone—I will certainly include the noble Lord in these discussions if he feels he is being left out. I made the point purely because it was my noble friend who brought the sporting organisations to see me, having made a request. I am not aware that the noble Lord came along with any sporting organisations—or, if he did, I did not notice them. But anyway, I will include him in this offer. I would be more than happy to see him.

[Lord Rosser]

The Minister knows that I was not there with any sporting organisations, but I have an amendment down, which I take it that the Minister is not terribly enthusiastic about, which is very similar to the one tabled by the noble Lord, Lord Addington. The Minister has made it clear that he is prepared to discuss the amendment with the noble Lord, Lord Addington, so I am not quite sure why he originally intended to exclude ourselves.

[Lord Addington]

The noble Lord would of course add to any gathering that we had, and I hope that he comes at least as my guest to any meeting.

[Lord Henley]

I was not trying to exclude the noble Lord, Lord Rosser. I just thought that he was taking offence unnaturally, and in a manner that surprised me, because it was by a slip of the tongue that I referred to “my noble friends”. I could have included everyone; I included the sporting bodies. I look forward to seeing the noble Lord.

On the basis of what I said, I hope that as I move my amendments other noble Lords with amendments down will not want to press theirs.

Amendment 73 agreed.

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[Baroness Farrington of Ribbleton]

My Lords, should the noble Baroness, Lady Doocey, need additional support, I worked with the noble Baroness, Lady Gardner of Parkes, on extending the checks and the licensing to the minicabs. For some time, some of the other cab drivers resisted licensing minicab drivers. I am quite sure that the Minister will agree that, should the noble Baroness, Lady Doocey, who has presented her case strongly and got all-round support, need additional support, then I can recommend the noble Baroness, Lady Gardner of Parkes.

[Lord Henley]

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

[Lord Harris of Haringey]

I value my life too much.

[Lord Henley]

Anyway, my Lords, I express my gratitude to my noble friend for moving this amendment. She is seeking to amend the Police Act 1997 to make taxi and private hire vehicle drivers eligible for the enhanced criminal record checks. The legislation currently provides that, in the majority of cases, they are eligible for only standard criminal record checks. I assure my noble friend that we have had representations on this issue from the Mayor of London and Transport for London, and at this stage we are actively considering whether a change in the law is needed. In examining this issue, our priority obviously will be to ensure the safety of the travelling public. Further, we hope to come to a decision on this issue very soon indeed—certainly in advance of Report. I undertake to write to my noble friend and, on this occasion, to all other noble Lords who have taken part in this debate when an announcement is made.

I also offer an assurance on one small technical point. Were we to conclude that it was appropriate that all taxi drivers and private hire vehicle drivers should be eligible for that enhanced criminal record check, we could effect that approach through secondary legislation. On this occasion, primary legislation would not be needed as we could do that under the Police Act 1997. Briefly, I say to my noble friend that we are alive to this issue and intend to come to a very early decision that will certainly be before Report, which we have worked out is not likely to be before the beginning of February. I hope, therefore, that on this occasion my noble friend can withdraw her amendment and await that sympathetic letter, which she will get in due course.

[Baroness Doocey]

My Lords, I thank the Minister for that sympathetic response and I look forward to receiving the letter. I hope that this can be sorted out because it is a very serious matter. Most parents, in my experience, say to their young children, “Whatever you do, make sure that you get into a licensed taxi or a licensed minicab so that you will be safe”. I am sure we all want to make sure that it is kept that way. With that assurance from the Minister, I beg leave to withdraw my amendment.

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[Lord Addington]

My Lords, I will make a speech consisting merely of two questions that I did not get a chance to ask. The grouping session occasionally catches us out, no matter how long we have been here.

Both my Amendment 75 and Amendment 75A, which were considered earlier, have limitations in them. Mine has 10 working days and the noble Lord’s amendment has two weeks. If that was made more flexible, would some of the objections to these amendments be removed? There might be something there, as 10 working days probably is more flexible, but does this slightly different definition of the time-lag make these more workable? It is workability that we are dealing with.

Also, can we have a little more consideration of the idea of the disclosure process? As proposed in the noble Lord’s amendment, if you have something which is irrelevant to the person, there may still be the concern of safety with your CRB check. Can the noble Lord give a bit more consideration about that process of disclosure? At the moment, one would be told that there was something on the check but not what it is. I wonder if the noble Lord could give a little consideration to that. I beg to move.

[Lord Henley]

My Lords, on the first point I would certainly be more than happy to consider a greater degree of flexibility. I am not sure whether I would accept that what my noble friend was offering—10 working days, rather than 10 days—actually adds much in the way of flexibility, but if he comes forward with some ideas, we would look at them. I can say no more than that, but it is flexibility we are looking at, rather than the precise duration.

On the second question, disclosure would be, again, a matter that we could discuss at the useful meeting I am hoping to have with my noble friend, at which we are very much looking forward to seeing the noble Lord, Lord Rosser, as well.

[Lord Addington]

I thank my noble friend for that response, and I beg leave to withdraw the amendment.

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Moved by

[Lord Henley]

82: Clause 82, page 74, line 13, at end insert—
“(7A) If up-date information is given under subsection (7)(a)(i), (7)(b)(i) or (7)(c)(i) and the certificate to which that information relates is one to which subsection (7B) applies, the up-date information must include that fact.
(7B) This subsection applies to a certificate which—
(a) in the case of a criminal conviction certificate, states that there are no convictions or conditional cautions of the applicant recorded in central records,(b) in the case of a criminal record certificate, is as described in section 120AC(3), and(c) in the case of an enhanced criminal record certificate, is as described in section 120AC(4).”

[Lord Henley]

My Lords, I spoke to this amendment with Amendment 73. I beg to move.

Amendment 82 agreed.

UK Border Agency: Prisoners

Lord Henley Excerpts

Thursday 1st December 2011 Lords Chamber

[Lord Avebury]

To ask Her Majesty’s Government what is their response to the recommendations by the independent Chief Inspector of the UK Border Agency on how the agency manages foreign national prisoners.

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

My Lords, this is an important report and the United Kingdom Border Agency has taken its recommendations seriously. Of the eight recommendations, four were accepted in full, three in part and only one was rejected. We have taken steps to implement and reinforce policy and procedures relating to the management of foreign national offenders. I have placed a copy of the full response in the Library.

[Lord Avebury]

My Lords, I thank my noble friend for that response, but does he not agree that the UKBA’s lukewarm response to the Chief Inspector’s recommendation that it should reduce the number of decisions that are overturned on appeal was disappointing? As the UKBA must have a good idea of the likely adverse decisions of the court in most of the one-third of appeals that it loses, is it not both perverse and costly to the public purse to continue acting on the presumption that, where the deportation threshold is met, only in exceptional cases will deportation breach Article 8? Secondly, what is the Government’s strategy for reducing the number of foreign nationals who remain in prison after their sentences have expired, mainly because of non-co-operation by the prisoner or his embassy with the process of obtaining an emergency travel document?

[Lord Henley]

My Lords, I do not accept that our response to that particular recommendation was lukewarm. We accepted it in part and we accept that there is a need to improve the quality of our decision-making. We also accept that it is necessary to increase the number of those whom we manage to deport, as and when their sentences end. The number of those who have not been deported has come down steadily over the past few years.

[Lord Hunt of Kings Heath]

My Lords, is not the reason for the potentially muted response of the UKBA and the Government to this report because the core conclusion is that the quality of decision-making needs to be improved? The UKBA is faced with a 20 per cent cut in its budget and major new responsibilities. No wonder the Border Agency does not have that much confidence in improving the quality of the work that it is doing.

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[Lord Henley]

My Lords, the UK Border Agency has confidence that it can improve these things and that it can do this within the perfectly manageable reductions that it is facing as a result of, as we have said on a number of occasions, the actions of the party opposite when in government. The agency will be able to improve its decision-making and it accepts that it needs to improve its quality.

[Lord Ramsbotham]

My Lords, the executive summary to this report mentions that,

“By January 2011, over 1,600 foreign national prisoners were detained under immigration powers at the end of their custodial sentence, pending deportation”.

I remember that, as Chief Inspector of Prisons in 1999, I recommended that the default position should be that prisoners sentenced to deportation should have that deportation processed while they were in prison, so that at the end of the sentence they went straight to the airport and out. Why were more than 1,600 still detained after the end of their custodial sentence?

[Lord Henley]

My Lords, there are frequently problems dealing with the country that the individual prisoner is going to and arranging travel documents. I remember the recommendations made by the noble Lord and that is something that we shall have to address in due course. Obviously, the best way of dealing with that would be to start the process somewhat earlier.