EU: Police and Criminal Justice Measures

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 23rd July 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I must declare an interest, as a member of EU Sub-Committee E, one of the two sub-committees that produced the report that we have been discussing this evening. I also remind the House that I am a trustee of Fair Trials International, which has a particular interest in the operation of the European arrest warrant. Given the lengthy speakers list and the short time available to us, I will cut to the chase.

For me and my noble friend on the Front Bench, judging by some of his opening remarks, one of the fundamental problems that the Government faced in addressing this opt-out decision is the nature of the wording of the opt-out negotiated under Protocol 36 by the last Government. This is its all-in or all-out nature. There is no picking and choosing; no matter how futile, irrelevant or unnecessary a particular measure may be, the totality has to be accepted or rejected.

I was glad to hear from the noble Lord, Lord Hannay, that on reflection he would not divide the House on his amendment. That would have seemed an unwise course of action. First, it would have treated the issue as black and white. As I said, while that construction is placed on us by the wording of Protocol 36, within the areas covered by the protocol the pluses and minuses of the policy issues are much more nuanced. Secondly, while the Government should have responded earlier to the joint sub-committees’ report—I entirely share the view of other noble Lords that producing the response at noon today is really not good enough—nevertheless Members of the House not on those sub-committees should have the opportunity to express their views this evening. That answers the point made by the noble Lord, Lord Richard, about the rationale for this debate. It will no doubt help to inform the Government’s thinking. Finally, as I understand it, this is only the first time round the track, because we will come back for a further debate and discussion as the Government’s thinking and approach to each individual opt-in or opt-out decision become clear.

[Lord Richard]

My Lords, since the noble Lord quoted me, I thank him for giving way. He says that the purpose of this debate is to help to inform the Government’s views. Why, in that case, is this not a take-note Motion? Why is it framed in the express terms of the opt-out?

[Lord Hodgson of Astley Abbotts]

If the noble Lord reads the Motion before the House, he will see exactly what it is. It gives Members of your Lordships’ House, particularly those who have not participated in the sub-committees’ deliberations, a chance to express their views. That is entirely appropriate.

[Lord Hannay of Chiswick]

My Lords, earlier in the noble Lord’s speech, he congratulated me on the wisdom of not putting my amendment to a Division. However, he failed to note that the reason was that the Government had conceded both points that were contained in it.

[Lord Hodgson of Astley Abbotts]

That is true, but it would have been unwise to have proceeded with a black-and-white decision along the lines that we are operating, as I explained.

In the remainder of my remarks, I want to concentrate on just three points. These are the different categorisations of the 130 opt-out decisions that we are looking at. First, there are the 40 or so that are considered redundant or inapplicable. Some noble Lords and some members of the sub-committee have argued that there was no point in disturbing these particular sleeping dogs. I am afraid that I take a more fundamental approach than that. Where possible, one should remove redundant provisions from the statute book. Leaving such provisions extant, however innocuous they may seem at the time, can cause unforeseen problems in the future, as to both applicability and compliance. From my point of view, the Government were right to take this opportunity to clean up the directives in this way.

The second category is of those directives to which the Government seek to opt back in. Primarily, they focus on enhancing the international dimension of the fight against organised crime. It is more than ever a self-evident truth that crime, along with many other activities, has gone global. The European dimension to this global challenge has formed important elements of many reports from your Lordships’ various EU sub-committees. I strongly support decisions to continue with hard and practical measures in this field: the joint investigation teams, exchange of information under ECRIS, mutual recognition of confiscation orders and so forth.

Not all the directives are perfectly formed. I am pleased that, while recognising the value of the European arrest warrant—I entirely share the views of noble Lords who have pointed to its particular importance in the relationships between the UK and the Republic of Ireland—nevertheless improvements can and should be made. These should be in areas such as proportionality, not allowing people to be held for long periods without trial overseas and using videoconferencing to enable people not to have to travel, particularly where the case against them is not as sure as it might be. For these global security matters, we should opt back in and I am glad to see us doing it. If it is in our interests to improve global security, I see no reason why fellow European members should not wish to collaborate with us to ensure that.

Finally, I turn to the third category of directives, to which the Government propose not to opt back in—the most challenging area of our discussion. I am no lawyer, but my concerns as an external viewer are threefold. First, how does one combine into one legal framework cases that emerge from two different legal traditions: the investigative approach, followed by most EU member states, and the adversarial common law approach of the UK, Ireland, Cyprus and Malta? Secondly, to what extent does any potential judicial activism of the European Court of Justice represent a challenge to our established legal procedures? Thirdly, what will be the long-term impact of the European Convention on Human Rights, although an entirely separate structure, on the first two? I do not pretend to have clear answers to these questions and I am not sure that many other people do either. In the circumstances, the Government are wise to proceed slowly, to watch developments and to react accordingly. Joining in will surely represent a one-way ticket and I am not yet convinced that the UK should be embarking on that journey.

In conclusion, given the restrictions imposed by the wording of Protocol 36, the Government are taking a broadly sensible approach by, first, removing superfluous and redundant legislation; secondly, by rejoining those directives that help to increase the security of Europe as a whole; and, thirdly, awaiting the clearing of the fog that still hangs over a number of important public policy issues. That is why I shall be supporting the Government tonight.

Immigration and Security

Lord Hodgson of Astley Abbotts Excerpts

Thursday 4th July 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I share the view expressed by many other noble Lords that my noble friend Lord Marlesford is owed a great debt of gratitude for allowing us to debate this important topic. He has a great virtue: once he has got his teeth into an issue, he does not let go. I had opportunities in another Select Committee under his tutelage, when together we were able to work on the chronic mismanagement of another agency, the Serious Organised Crime Agency and its multiplicity of suspicious activity reports—the SARs regime. My noble friend has done an admirable job by filleting the UK Border Agency this afternoon. It is also a pleasure to follow the noble Lord, Lord Ramsbotham. I serve under his tutelage, too. He is the chairman of the All-Party Parliamentary Group on prison reform, of which I am the secretary. I also serve with him on the Select Committee on Soft Power and the UK’s Influence, which has been in operation for a few months.

It would be impossible to go one better on either of those two distinguished contributions, and I want to step back a little and consider the country’s security needs in a slightly wider context. My starting point is that mentioned by my noble friend Lord Bridgeman, the shock that many of us felt on learning that the July bombers were not foreign-born jihadists but native-born Britons who therefore had access to the supposed benefits of our society—economic, educational and cultural—and I and many other people asked ourselves: what did this unwelcome news portend?

I identify four trends that together have exacerbated tensions, sadly all too often present when the sensitive but nevertheless important issue of immigration is discussed. In my view, taken together, they carry significant implications for the long-term security of this country. The first issue is the scale of immigration in the first decade of this century. Secondly, there is the potential crowding out of native-born individuals in the economy. Please note that I used the words “native born”, which are not alternative words for “white”. I mean that the impact of crowding out is equally, perhaps more, significant for recently arrived, second-generation immigrants than it is for people who have been here longer. Thirdly, there is the impact of the current, deep-seated economic recession. Fourth is the way that all these together are being exacerbated by the increasingly crowded conditions and population density of England, particularly the south-east of England.

First, the scale of immigration over the post-war period between 1945 and about 2000 resulted in there being about 4 million ethnic-minority Britons, most of whom came from post-colonial states. Since 2000, the pace has quickened. In the years since, their number has doubled to 8 million. To set this in historical context, it is said that if one omits the years of the large Huguenot immigration after the revocation of the Edict of Nantes in 1465 and the impact of Irish immigration—for much of the time Ireland was part of the United Kingdom—in each year between 2004 and 2010 there were more immigrants to the United Kingdom than there were in the whole period between 1066 and 1945. There were more immigrants in each year than there were in nine centuries.

The question that we have to ask ourselves is how quickly and successfully can our society absorb such numbers, and what does “absorb” mean? If they are not absorbed, what are the possible consequences for our security? Our society rests on a delicate balance of shared rights and responsibilities. Our welfare state in particular rests on a generational balance. What do we ask of immigrants? Undoubtedly, our life is enriched by their diverse contributions, but what of our values, our beliefs and our approaches? What are we entitled to ask, perhaps require, them to accept? There is evidence—admittedly much of it anecdotal, but equally much of it widespread—as the right reverend Prelate the Bishop of Derby mentioned in the global migration debate on 6 June, of introverted, inward-looking communities, including schools and faith groups. These must be breeding grounds for attitudes that do not form part of our historic traditions and therefore present dangers to the nation’s security.

This situation is exacerbated by the dangers of crowding out, which is well documented among people in the lower range of wage and skills. My noble friend on the Front Bench, with his knowledge of East Anglia, will have first-hand knowledge of this situation in the Peterborough area. However, there is potential crowding out higher up the scale. The Higher Education Commission last year conducted an inquiry into postgraduate education. My noble friend Lord Norton of Louth and the noble Lord, Lord Boswell of Aynho, were members of the inquiry. The report stated:

“Much of the recent increase in postgraduate student numbers is due to rising numbers of international students. Postgraduate enrolments have increased by more than 200% since 1999, compared to an increase of just 18% for home and EU students. The Commission is concerned that this increase masks stagnation in the qualification and skill level of the home-domiciled population. We need an emphasis on up-skilling the UK population, ensuring that British students are able to compete in the global labour market”.

Added to that is my third point. The general impact of the economic recession and the psychological impact on young men and women of not being able to find gainful employment, especially among first-generation arrivals, should not be underestimated, particularly when they see the jobs they seek being taken by immigrants.

Fourthly and finally, the population continues to increase. The Office for National Statistics has recently produced a press release covering last year’s population increase. The population of England and Wales grew by 396,900, 60% of which was due to the excess of births over deaths but 40%—155,500—was due to international arrivals. Just to put this figure in context, this means that the population of England and Wales is increasing by 1,084 per day. We are putting a medium-sized village on the map of England and Wales every week. We are putting a parliamentary constituency on the map every 10 weeks.

Security does not just stop at the White Cliffs of Dover. It is a ghastly, overused and hackneyed phrase to say that we live in an ever more interconnected world. If we do not want people to try to come here in large numbers from that wider world, and within those large numbers there will inevitably be some who wish this country ill, we have to find ways to make life more tolerable for them at home. We may be feeling sorry for ourselves about our economic plight but to the people in developing countries, particularly those who have found development to be difficult, the UK looks like Nirvana. Somehow, therefore, desperate people are going to find a way to get here.

However, there is a wider point. What these developing countries need is leadership. They need their citizens to be trained in the skills that a modern state requires. Yet, we see nothing perverse in setting out to recruit these very people to come and work here. Let me give a practical example. I am extremely pleased to see in his place the noble Lord, Lord Kakkar, because in the debate on global migration earlier in June to which my noble friend on the Front Bench also replied, the noble Lord, Lord Kakkar, explained how this country is still creaming off health workers from all over the world to come and work here. He said:

“In our own country it is clear that we have been absolutely dependent over the past four or five decades on the migration of skilled workers in healthcare—doctors, nurses and other healthcare professionals—to ensure the delivery of a successful National Health Service. I myself am the son of two medical practitioners who came to the United Kingdom in the 1960s to continue their own postgraduate education and were given the chance to develop their careers here, both as academics and clinical practitioners”.—[Official Report, 6/6/13; col. 1378.]

He went on to explain that just over a quarter of a million individuals are registered with the GMC, 160,000 of whom are the products of our 32 recognised medical schools, 25,500 of whom come from within the EU, but 67,000 of whom come from the wider world. If you do the maths, this means that 26.5%, over a quarter of the doctors in this country, come from outside the EU. They will not all be from developing countries and some will be pursuing academic rather than clinical careers, but one is inevitably drawn to the conclusion that there must be a measurable adverse impact on health provision in developing countries as a result of these policies.

Let me make it clear to the noble Lord that this is not an attack on him or his parents. I have no doubt that this country has benefited greatly from their work. However, it is worth asking ourselves about the considerable implications for other less fortunate parts of the world. For example, in Malawi, following heavy migration, there are now 336 nurses for a population of 12 million people. On the same scale, the UK would have fewer than 2,000 nurses. When your child is dying of a preventable disease in a developing country and you are told that the West is recruiting your country’s scarce health workers, does this make you more favourably disposed towards the West or does it make you more receptive to the blandishments of the extremist? An important by-product of the information revolution is that more people now know more about other parts of the world than ever before. What we could, so to speak, get away with 10 or 15 years ago is becoming increasingly a matter of public record. Further, what is happening in healthcare is paralleled in a whole range of other skills and professions.

To conclude, my noble friend Lord Marlesford is absolutely right to stress the need for secure borders, but we also have to think strategically about what we should demand of those who were born and reside here, what we should demand of those who seek to live here permanently, how many of them we can afford to admit, and what we offer them all in return. To fail to resolve this conundrum means that we will put at risk that delicate balance of rights and responsibilities on which our civil society, honed over hundreds of years, depends. The security of the nation and its prosperity depend on our ability to engage with and resolve these challenging issues.

Global Migration and Mobility (EUC Report)

Lord Hodgson of Astley Abbotts Excerpts

Thursday 6th June 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I begin by congratulating the members of Sub-Committee F on this very interesting and challenging report. Until a year ago, I had the privilege of being a member of the Sub-Committee so should have known that a committee chaired by the noble Lord, Lord Hannay, and with Michael Torrance as his clerk would produce a report that was rigorous, evidence-based and clear. I found myself applauding much of it, particularly the actions that could be taken to help speed up the economic development and increase the political stability of source countries. Yet as I read the report, an element of doubt crept into my mind and it is that element which forms the basis of my remarks today.

I want to focus on three statements in the report. First, there is the second to last paragraph of the summary, which reads, as the noble Lord, Lord Hannay, pointed out:

“The EU’s Single Market is predicated on the free movement of its own citizens between Member States. This freedom is fundamental to the United Kingdom’s continued membership of the EU”.

Secondly, there is the conclusion in paragraph 46, which, while encouraging migration to meet specific skills shortages, goes on:

“However, such an approach is not a panacea, and should form part of a comprehensive approach which also tackles the development of skills among the existing workforce”.

Thirdly and finally, there is the sentence in paragraph 2 which reads:

“Population density in the United Kingdom, which is roughly twice that of Germany and four times that of France, means that migration policy is a matter of keen political debate”.

“Keen political debate” is an appropriately measured phrase. In my remarks today I am seeking to be similarly measured because this is an issue that, as the noble Lord, Lord Hannay, said in his introduction, can all too easily be hijacked by groups for their own purposes, some of which are not altogether pleasant.

Here are a couple of statistics. Today the population of the United Kingdom is just over 63 million. For the record, England, with a population density of 383 people per square kilometre, has just overtaken the Netherlands to be the most densely populated country in Europe, leaving aside city states such as Monaco. England is now the sixth most densely populated country in the world after Bangladesh, Taiwan, South Korea, Lebanon and Rwanda.

I am afraid that that is just the beginning of the challenge that we face. As I said, our population is just over 63 million, but the mid-range projections from our Office for National Statistics suggest that the UK’s population will reach 70 million by 2027, 15 years from now. That is an increase of 7 million people. What do 7 million people look like? The city of Manchester has 500,000 people in it, so think 14 Manchesters. The larger Manchester conurbation, including Bolton, Bury, Oldham, Rochdale, Salford, Stockport, Tameside, Trafford and Wigan, has a population of just over 2 million. So, to house this increase in population we may have to build the equivalent of three Greater Manchesters by 2027. This increase in population will surely not be spread evenly across the country. The bulk of the increase may well take place in the south-east, where we may have to build two of those three Greater Manchesters to which I am referring. It will be something of challenge for future government Ministers to explain all this, not least to those who live in shires and leafy suburbs.

At this point, some noble Lords may be tempted to reach for the exemplar of Thomas Malthus, who in the late 18th century said that at some date in the future a global famine would take us because of a rising population. Such noble Lords are inclined to say that Malthus has so far been proved wrong, and we should not worry about these issues now. However, we are not talking about Malthus or about some date in the future but about the output of a respected government agency giving predictions for only 15 years from now, well within the lifetime of people in your Lordships’ House today.

Should we worry about this? I have already referred to our present population density of 383 people per square kilometre. Bangladesh has about 1,400 people per square kilometre, 3.5 or four times as dense, so we can certainly fit the people in—but at what cost to the quality of life? Sir John Sulston, who recently chaired a Royal Society inquiry on people and the planet, said that our target should not be to cram as many people as possible on to the planet. He went on to say:

“We have to look at what will allow humankind to flourish. We want to aim for a high quality of life and not just to scrape along”.

What gives this issue a particular edge in the context of this debate on the EU is the unique position of the United Kingdom in this regard. The report rightly points out that France, with 102 people per square kilometre, is about 25% as densely populated as we are while Germany, with 226 people per square kilometre, is about two-thirds as densely populated. No less importantly, though, both those countries and Italy have falling populations. Germany’s population today is 83 million, compared with our 63 million. On present German trends, that will fall to between 70 million and 74 million by mid-century. At some point in the 2030s, the UK’s population will overtake Germany’s, and we will become the most populous country in Europe.

The question that I have to pose today is this: if these current trends persist, can we continue to allow the completely untrammelled movement of labour within the EU without imposing increasing and unwelcome strains on our civil society? The right reverend Prelate the Bishop of Derby touched on some of the first signs of how this issue may pan out. At the heart of this debate, which is faced by all EU member states, is the moral significance attached to a particular birthplace. In other words, does a country or any aspect of it belong to its inhabitants, no matter what their colour or creed? Do we follow what has been called the “cruise liner” theory of the nation, in which people come together temporarily and have no ongoing relationship, or should the fact of being born in Britain—the accident, if you prefer to use that phrase—automatically entitle you to your country’s collective heritage? These are deep philosophical waters and beyond the terms of our debate today, but they none the less provide the background against which this report has to be considered.

On a more practical level, it is perhaps worth reflecting on why the UK’s population might be growing so fast. Some may say that it is about the social security system, which is universal and means-tested, as opposed to being primarily contributory as on the continent. It may be, but I rather think that is only a minor feature. I think there are two more potent forces at work. The first is the point made by my noble friend Lord MacGregor of Pulham Market about the ability to learn English. For better or worse, English has become the world’s lingua franca and, in particular, it has become the lingua franca of technology, so how better to fit yourself for the modern world than by coming to the UK to learn English?

The second is the anecdotal issue of EU citizens coming quite legally to this country to undertake work that our fellow citizens appear unwilling to do. Every Member of your Lordships’ House will have anecdotes about this and the challenges it presents: this is mine. I have a house on the Shropshire-Herefordshire border. Every year, thousands of eastern European citizens perfectly legally come to pick fruit, yet there are many unemployed people in the city of Hereford and in Herefordshire. The special and specific challenge that we face is to see what we can do in Hereford and elsewhere to encourage people to take responsibility for their financial future and so to give them the self-respect that will follow. That is why I so strongly support the conclusion of paragraph 46 that immigration can be no panacea. If it is seen as one, we risk creating a disaffected, disengaged, sullen minority of what the late Lord Dahrendorf christened the underclass. If this is true in this country, how much more pertinent must it be on the continent in Spain, Greece, Portugal, Italy and even France, where unemployment among young people seems to range between 20% and 45%?

To conclude, I congratulate Sub-Committee F on addressing this issue. The challenges of absolute population size, age balance, equality of access to economic opportunity and the extent to which the UK and the EU open their doors to all comers are great. As my noble friend on the Front Bench prepares his reply, he will no doubt be thinking with relief that this all goes well beyond his brief and pass swiftly on. That is part of the problem. These challenges affect every aspect of government and every government department, but they are the responsibility of no government department. David Goodhart, the director of the think tank Demos and previously a senior correspondent for the Financial Times, has recently published a fascinating book on this topic called The British Dream. He describes himself as a public schoolboy leftie with an instinctive sympathy for those seeking a better life for themselves, but he none the less concludes that Britain has had too much immigration too quickly, that its economic benefits have been oversold, that it has demoralised the indigenous working-class population and, most importantly, that it threatens to undermine the contract between the generations and the consensus on which our entire welfare state rests. He is writing about Britain, but looking at his book and hearing on the news about other EU countries, one cannot help but be drawn to the read-across from the situation here to that elsewhere on the continent.

These remarks may seem uncompromising, unwelcome and unfriendly, and no doubt some noble Lords may wish to criticise me for making them, but Dean Acheson, the US Secretary of State, once famously remarked that in a democracy policies do not trickle down, they well up. This is an issue that is welling up fast.

Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Monday 19th November 2012 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

7: Schedule 1, page 13, line 29, at end insert—
“(1) The Chair of the ISC shall be elected by the House of Commons by secret ballot.
(2) A candidate wishing to stand for election to the Chair of the ISC must seek in advance of the ballot the formal consent of the Prime Minister for their candidature, to be notified in writing.
(3) The first election will take place as soon as there is a vacancy in the Chairmanship, not at the next General Election.”

[Lord Hodgson of Astley Abbotts]

My Lords, I rise to move Amendment 7. This is the first time I have intervened on Report so I draw the House’s attention to the various relevant entries on the register of interests. I am grateful to my noble friend Lady Williams of Crosby for having put her name to this amendment.

I did not take part in the debates on Part 1 in Committee. My interests were much more with Parts 2 and 3, and I have tabled some amendments that we shall debate on Wednesday. However, developments since have led me to table this amendment, which inserts a new paragraph at the beginning of the section headed “Procedure” in Schedule 1 that provides for the direct election of the chairman of the ISC by Members of the House of Commons. To borrow the phrase of my noble friend Lord King, it is an evolutionary development in the power and prestige of the committee.

My purpose in moving this amendment can be simply stated. First, it is to buttress the independence of the chair of the ISC. Secondly, it is to increase the democratic accountability of that role. Thirdly and most importantly, it is to increase public confidence in the operations of the ISC. I make it absolutely clear that I am in no way attacking or criticising the existing or past holders of the office of chairman of the ISC, but my amendment reflects the fact that with the provisions of this Bill as a whole, the Government are moving into new, uncharted and potentially dangerous territory, which requires us to consider whether extra precautions are needed to buttress our civil liberties. I note in passing how the reputation and reach of the existing Select Committees appear to have increased since their chairs were directly elected.

The amendment would establish a further check and balance appropriate to the consideration of matters as complex and as delicate as national security. First, it would open up the chairmanship of the ISC to any Member of Parliament who wished to stand for it. In doing so, it would reduce the concern—I make no assessment as to whether it is justified—that leaving the appointment of the ISC entirely in the hands of the Prime Minister runs the risk of being rather too cosy for modern conditions. I note, and my noble friend Lord Taylor has referred to this already, that the Bill as drafted permits—empowers—the members of the ISC to choose one of their number to be their chair. While I welcome that development, I do not believe that it goes far enough. Since the Prime Minister controls the membership of the ISC, he controls the population from which the chair is chosen.

Secondly, the amendment would balance this by requiring each candidate to obtain the formal approval and consent of the Prime Minister before standing. This would eliminate candidates who might have shown no prior interest in or experience of the intelligence or security field, or shown—dare I say it?—an overdeveloped interest in opportunities for self-promotion. Thirdly, the amendment does not seek to wrench apart the existing arrangements immediately. The other provisions of the Bill will take some time to bite and so should this provision.

Let me also make it clear what the amendment does not do. It does not seek to make the ISC a Select Committee of Parliament—we have had an extensive debate on the amendments proposed by the noble Lord, Lord Campbell-Savours—so the reporting arrangements would remain unchanged, with the Prime Minister able to require redaction or exclusion as under Clause 3(4) of the Bill. I accept the force of the argument that there must be limits to transparency in this area.

My principal reason for tabling the amendment is that, as we move slowly but apparently inexorably into the shadowy world of closed material procedures, special advocates and restricted reporting, we need to ensure that there is at least one person at the heart of the process who has a direct democratic mandate given to him or her. As an example of how this power might be used, a number of amendments have been tabled to Part 3 of the Bill about review procedures, sunset clauses and so forth. A directly elected chair of the ISC could and should play a vital role in reassuring Parliament and the public that the new powers to be given under the Bill are being exercised properly but above all proportionately. I beg to move.

[Baroness Williams of Crosby]

My Lords, my name is also attached to the amendment and I congratulate my noble friend Lord Hodgson of Astley Abbotts on an extraordinarily brief and clear description of the reasons for it. I begin by paying a moment’s tribute to the person—no longer alive, I am sad to say—who started the whole process of Select Committees. I still remember when I was a Minister in the Labour Government which fell in 1979 the amazement that I felt when Lord St John of Fawsley got up and proposed the idea of Select Committees, which were to be independent of the Whips and free to be accountable to Parliament and to express their concerns about matters of public policy. I think that the Select Committees have done this Parliament very proud indeed, not least at the far end of this building, in the House of Commons, where, time and again, they have come up with remarkable insight and courage in a way that has added hugely to the prestige of Parliament, a prestige that was becoming slowly lost because of the inevitable predictability of so many of our open debates.

The amendment which my noble friend has moved, which I support, fully comprehends the point made so effectively by the noble Lord, Lord Butler of Brockwell, which is that no Act of Parliament should be able to take away from the Prime Minister his fundamental responsibility for the security of the citizens of this kingdom. However, there is no need to go as far as the present ISC does in accountability passing to the Prime Minister rather than to Parliament as a whole.

The ISC is of course a special case. It is unlike any other committee of Parliament. It is certainly unlike Select Committees, but also unlike other committees that have served Parliament over the years. It is different, of course, because of the sensitivity of the material that it deals with. It is therefore the responsibility of this House, in its consideration, to try to get the correct balance between accountability to Parliament and the sensitivity of much of the material that the ISC deals with. The noble Lord, Lord King of Bridgwater, said that effectively, but rightly indicated that there was room for some evolution of this committee. Perhaps I might say a word or two about that evolution.

The proposers of this amendment have chosen it very carefully to ensure that a totally unsuitable person cannot be appointed to be chairman of this committee. As my noble friend Lord Hodgson said, we are leaving a veto with the Prime Minister against a candidate for chairmanship who might be wholly unsuitable. That is absolutely right because the Prime Minister, by the nature of his office, has a greater access to detailed intelligence than most of the rest of us. However, I have one word of warning because the issue of accountability to Parliament is of the first importance. In responding to an earlier amendment, the noble Lord, Lord Taylor of Holbeach, properly stressed time and again the importance of treating sensitive information with due respect and care. What he did not mention enough was that the House faces a genuine concern about intelligence. It is simply not the case that there is no public concern about the work of the Intelligence and Security Committee. I hope that I do not offend people by mentioning two cases that spring to mind.

One is that the general issue of intelligence goes back a very long way. Those of us who recall the period immediately after the Second World War will remember the so-called Cambridge group, who turned out to be extremely able people in the intelligence that they sent to the Soviet Union, and that every one of them was totally accepted as a respected member of the establishment. It took a long time for people to realise that people such as Sir Anthony Blunt and others could actually be spies.

--- Later in debate ---

[Lord Campbell-Savours]

If we go back to the speech of the noble Lord who moved the amendment, he never said that any Member of the House of Commons could stand. I had to disappear outside the Chamber for medical reasons, but I understand that the noble Baroness, Lady Williams, argued that any Member of the Commons should be able to stand. However, I do not think that that was the noble Lord’s suggestion. I am presuming that he was moving the amendment on the basis that there would be a membership of the committee that was put to the House on the recommendation of the Prime Minister, and from those members there would then be a person who, with the endorsement of the Prime Minister, could be chairman of the committee. We may be speaking at cross purposes and I stand to be corrected. If the noble Lord is indeed suggesting that any Member of the House could stand to be chairman of the ISC, then I would completely oppose that.

[Lord Hodgson of Astley Abbotts]

My purpose at this stage, and clearly the amendment has aroused a good deal of interest around the Chamber, was to ensure that we have the widest possible opportunity for people to stand. There are already provisions within the Bill about consultation between the Prime Minister and the Leader of the Opposition and about the procedure, and I did not see those falling away. As to whether anyone would be absolutely precluded—probably not.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I have a very full response to give to this amendment, but we have had a very full debate. It has been a very useful debate. I know that it is customary for Ministers to thank noble Lords who have presented amendments, but I thank my noble friends because they have brought to the Report stage an interesting idea about the relationship between the ISC, Parliament and the Prime Minister. Having said that, with even the noble Lord, Lord Campbell-Savours, having some doubts about the efficacy of this amendment, I am at one with the noble Lords, Lord Reid and Lord Gilbert, and my noble friend Lord King in seeing the great difficulties that this election might present. It was interesting to listen to the noble Lord, Lord Reid, analysing the motives that people might have for seeking to be rejected by the Prime Minister as being a suitable candidate. I have little doubt that some people would seek to exploit that situation.

I shall reiterate the Government’s position on this matter. This committee will be elected by Parliament and nominations will be provided by the Government. Parliament will be the final arbiter of who sits on the committee. The Government propose that the chairman of the committee will be elected by the members of the committee. That represents a sufficiently practical solution to the particular task that this committee undertakes. We have had some speculation about whether the chairman of the committee should be drawn from the Opposition. I have given the Government’s position, which is that it is for the committee to decide who should be the chairman of the committee. I do not believe that it can be done by an election by another place or by this House electing the chairman. For that reason, I ask my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate. I think I am probably the only person who has not served on the ISC. I think all the other speakers have served on it, so I am probably slightly blind-sided on some of this. The noble Lord, Lord Reid of Cardowan, said that the problem is that it would exclude Members of the House of Lords. It may possibly do so, but not necessarily. Secondly, he said that it would prevent the chairmanship going to a member of the Opposition. Again, it may possibly do so, but not necessarily. Both he and the noble Lord, Lord Gilbert, talked about the political fallout. Yes, but this is a very important committee, and it will be even more significant when we pass the rest of the provisions of the Bill. If the price of that is a little political disturbance, I do not think that is necessarily a bad thing. I understand his fourth argument, which was about political campaigning. At this end of the Palace, the arrangements for electing chairmen of Select Committees have gone pretty well. They have been shared out and fought over, and both parties have ended up with some chairmanships, but not all of them.

The issues are answerable. I am not saying that they are not challenging. I say to the noble Lord, Lord Martin of Springburn—

[Lord Reid of Cardowan]

Just to set the record straight, I have never been a member of the Intelligence and Security Committee, although I have been at the end of some of its pertinent inquiries.

[Lord Hodgson of Astley Abbotts]

I am happy to withdraw that allegation, if allegation it is. As for what the noble Lord, Lord Martin of Springburn, said about heavy weather, I ask the House to consider that the committee will play an increasingly important role. The Justice and Security Bill, when it becomes an Act, takes us into new territory with closed material procedures in courts. The chairman of the ISC will have a very important determinant role in this. Having a chairman who is selected from a narrow body of people pre-selected by the Prime Minister and the leader of the Opposition is perhaps just a little too cosy. I leave that thought with the House, perhaps for reflection when the Bill continues its passage through the other place. In the mean time, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Extradition

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 16th October 2012 Lords Chamber

[Lord Taylor of Holbeach]

I thank the noble Lord. The question from the noble and learned Lord, Lord Morris, was about delays in the normal process and not about delays in the European Court of Human Rights in Strasbourg. I hope that I understood that correctly. Perhaps I may inquire about correspondence with this Government to see whether it is possible to release any of that for the noble Lord. If so, I will place a copy in the Library.

[Lord Hodgson of Astley Abbotts]

My Lords, I need to begin by declaring an interest as a trustee of Fair Trials International. I congratulate my noble friend and the Government on having introduced a forum bar. It will end the unattractive process of forum shopping, which is a search for judicial procedures that offer the greatest chance of conviction and the highest possible penalties. When the Government come to examine and review extradition arrangements, could they make sure that they include opportunities for common bail procedures and access to interpretation? Very often people operating overseas are unable to understand of what they are being accused, and access to interpretation is a critical part of their access to justice.

[Lord Taylor of Holbeach]

I am not in a position to comment in detail on those particular points, but I thank my noble friend for those suggestions. They will be borne in mind as we undertake a review of the process.

Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, as we return to the debate on this very important second reading, I need to begin by saying I am not a human rights lawyer. I am not a lawyer at all. I have had no contact or involvement with the intelligence or security services, so I tread rather warily and carefully into this specialist area for fear that the ground may open and swallow me up.

My interest in this area comes about because I am the treasurer of the All-Party Group on Extraordinary Rendition. I am also a trustee of Fair Trials International. Therefore in my rather amateurish and non-legalistic remarks, I want to focus on what seem to me as a layman some of the dangers and challenges of Part 2 of the Bill. My experience in those two particular roles is that the processes of international justice, or perhaps I should say, justice with an international aspect, do not always proceed as smoothly or as even-handedly as we all would wish.

The issue of partial access to information and the inability to check its veracity causes me concern because of what happens at Fair Trials International. The average FTI case usually involves someone of modest means being somehow swept up in the proceedings. By definition, the proceedings are normally abroad and the partial sharing of information and the inability to challenge their veracity comes about because the defendant does not understand what he is being accused of because it is in a foreign language, which means that he cannot test the truth of the case against him. All too often, once the full facts are laid out and once everyone knows what is being complained of, the defence is able to ensure that the case falls away. I want to ensure that in the Bill we are not creating circumstances in which these sorts of events become prevalent.

My second general concern stems from the fact that in my professional life I have worked in the City and I have spent some time as a regulator. The regulator of financial services has to create a balance, not on the époque-like matters that we are discussing this afternoon, but on the level of regulation. Too much regulation will be very expensive in money or management-time terms, will discourage innovation and will diminish the reputation of the financial community of this country over a period of time. On the other hand, too little regulation, with a free for all, no standards of behaviour and lower market confidence, will have the same effect. So I quite understand that a balance has to be struck.

However, the danger in real life is that regulators are, by their very nature, risk averse. An innovation that never happens reflects no discredit on a regulator but a failure does: it is public, it is controversial and it damages reputation. There is an inevitable tendency to raise the bar. In effect, there is always a danger of what we call regulatory capture. As we go through the Committee stage of the Bill, I want to be convinced that there is not an equivalent of regulatory capture taking place in this area.

My third general point, which is more specific to this Bill, is that I am currently undertaking a review of the Charities Act for the Government and there have been strong suggestions from certain quarters that charities in the United Kingdom are raising considerable sums of money which are to go overseas for purposes that are less than charitable. That is a serious accusation. The fact that donations in this country, no doubt enhanced by gift aid, should end up in the hands of al-Shabaab or the Taliban, is indeed worthy of investigation. When one looks into it in detail and asks for even minor facts to be produced, there is very little. There are a few wisps of smoke perhaps but certainly no fire. The Charity Commission has been called on to investigate only a handful of cases. That sort of broad statement about our intelligence and security, which is long on assertion but which turns out to be very short on fact, makes me concerned about whether we have the balance of the Bill right and whether what we may be surrendering in our civil liberties is yet justified.

As a result of this Bill, if I read it correctly, we are going to surrender, or certainly substantially amend, the right of citizens to hear and to challenge all the evidence presented by the state against them in the High Court and substantially amend the right of victims of kidnap, rendition, torture and other unlawful abuse to obtain evidence from the state to help to prove their case. That right applies only where the state has been involved in, or has facilitated, the commission of the wrongdoing.

If we are to surrender those two substantial matters, why are existing processes for the public interest immunity certificates suddenly inadequate? I understand that the system of PII has been operating for more than 50 years without significant government complaint. As the noble Lord, Lord Pannick, said, in applying the PII system, the courts have a raft of weapons that they can deploy to keep confidential the sensitive features of government evidence while permitting the essentially relevant parts to be disclosed. These include hearing parts of a case in camera with both parties represented; the use of confidentiality rings; redacting the sensitive parts of documents to which the noble Lord referred; allowing evidence to be gisted; and directing informers or secret agents to give evidence anonymously behind screens. My noble and learned friend Lord Mackay in his remarks earlier said that there were residual issues which were not covered by these provisions. I understand that and I obviously will stand corrected by him. I look forward to having a chance to discuss what those residual issues are. The report from the special advocates, who I assume know a bit about this area and certainly a great deal more than I do, says in paragraph (7):

“There is no fundamental difficulty with the existing principles of public interest immunity … which have been developed by the courts over more than half a century and which enable the courts to strike an appropriate balance between the need to protect national security (and other important public interests) and the need to ensure fairness. Nor is there any sufficient evidence that the application of these principles has caused insuperable logistical difficulties in any particular cases”.

That is my first broad concern.

My second broad concern is the assertion that CMPs are being used. A judge will still be able to weigh up the strength of the evidence before deciding whether a CMP may be used. I understand from what my noble friend was saying earlier from the Front Bench that it is a procedure which could be described as PII light. When I see the use of the words “must” and “must ignore” in Clause 6, it seems to me that the judge will have relatively little discretion. Reviewing evidence and making an assessment seems to me to be one thing—that is the PII procedure—but presumably the Secretary of State will turn up at the court and make a strong assertion that national security is involved, otherwise why would you have a CMP application? I leave it to those of your Lordships' House who are involved in the legal profession to tell me whether or not a court is likely to rebut such an assertion involving national security. My view is that it seems unlikely but I have no direct evidence.

My concerns on this point are further increased by the lack of transparency about CMP procedures and the extent to which they will be used. I can find no provision for closed judgments to be opened up at a later date, when secrecy is no longer required, so that the public can see how they worked; I see no requirement for notice to be given by the Government that a CMP will be sought; and I see no requirement for any reporting of the number of requests for and granting of CMPs. These are the pieces of information which should at least shed some light on this difficult area and go some way to reassuring us and the general public.

My third and final point is to repeat what has been said by other noble Lords about the Norwich Pharmacal case in Clause 13, where I believe that subsection (3), which defines “sensitive information”, is extremely broad and frankly could be used to cover almost any sort of information that the Government of the day might find it helpful to include.

I want to reassure my noble friend that I am not nihilistic about the Bill, nor am I naive about it. I do not think that the world is an entirely sunny place. Nor do I think that it is filled exclusively with friendly people of a sunny disposition. Further, I certainly do not wish to belittle, demean or hinder the activities of our security services. I am profoundly grateful to those men and women who are prepared to devote their careers and sometimes their lives to keeping me, my family and the country safe. Those men and women also have civil liberties that need protecting, which is why I still remain to be convinced that the balance of the Bill is right.

Proceeds of Crime: EUC Report

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 22nd May 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I am no longer a member of Sub-Committee F; I have been transferred for a period of rest and recreation to Sub-Committee G under the chairmanship of my noble friend Lord Bowness. These are probably my valedictory remarks in connection with a report of the sub-committee that I was on when it was prepared. I enjoyed my time on the sub-committee, first under the chairmanship of my noble friend Lord Jopling and more recently under the chairmanship of the noble Lord, Lord Hannay, who, with his impeccable style, has given us a clear exposition of the issues before us. We were splendidly looked after and impeccably marshalled by our clerk, Michael Collon. His deputy was originally Michael Torrance, who has now ascended to higher and greater things to the clerk of the committee. I am only sorry that I shall not be there to see him in action.

It is a truism that the past 40 to 50 years have seen the trends of globalisation and interdependence of nations burgeoning. It is hard for me to remember that when I first finished university and went to work in New York, one could not make an international telephone call; one had to book it. At weekends and holidays, one might have to book it several days ahead. In the investment bank in which I worked, because I had a decent English accent, my first job was to chat up the operators at the New York international exchange so that the lines could be kept open until my bosses were ready to make the telephone calls that they wished to.

In those days, when you went abroad it was demonstrably a foreign country, in a way that is inconceivable today. With Ryanair and easyJet, people pop all over Europe and indeed over the wider world in a way that in my youth was considered impossible. The emergence of global brands of clothing has meant that some of the physical appearances of us all have become much more similar. I think, by the way, that there is a PhD thesis to be written on the role of jeans in creating a global culture, but that is for another day.

All this is no doubt a good thing—increasing international understanding and so on—but there is of course a seamier side, which is the subject of our debate today. It used to be said that if the Governor of the Bank of England raised his eyebrows in the City of London, whatever was being complained of would stop, and no doubt the news that Scotland Yard was on your tail had a similar calming effect. These threats no longer have the same power or influence, because of globalisation. My first reason for encouraging the Government to opt in to this proposal is that crime has gone global. As our report on the EU’s international security strategy said,

“the nature of the international threat in this area was clearer and that therefore international cooperation was”—

as one of the witnesses put it—“utterly indispensable”.

The second reason, which was referred to by the noble Lord, Lord Hannay, is that to date our efforts at recovery have only scratched the surface, and there is a serious need to up our game. This means that work to establish effective asset recovery offices across the continent of Europe is a very high priority. To see how high, I suggest that the Minister ask his officials to look at Annex 2 to the Commission Staff Working Paper. Only eight countries are listed out of the total in the EU. Every set of statistics is on a different basis, no headings are the same and you have no way of telling what the level of effort is or how effective it is, or of comparing one country’s performance with another.

Even turning to the United Kingdom, which has a commendable record in this, and looking at the Serious and Organised Crime Agency’s report, which the noble Lord, Lord Hannay referred to—he gave the net figure for recovery, but the gross figure is £350 million recovered—in the same year when the Government said that cybercrime was costing the UK £27 billion, we were recovering £350 million gross. That is the second reason for urging the Government to opt in.

The third reason is that we need to establish some centralised mechanism to share information, establish best practice and spread it across Europe. Of the reports that we have had in Sub-Committee F, one of the most depressing sets of evidence was from Europol, which said that all too often police forces in individual European countries have bilateral arrangements and do not send information through Europol itself. If we are not able to create a central approach to this, then for certain the cops will never catch up with the robbers. We need to make sure that within this proposal the ability of Europol to set standards, find out what is going on and make sure that a proper level of collaboration and co-operation takes place, is critical.

What are the downsides? One answer perhaps lies in Annex 4 of the Staff Working Paper. Pages 58-71, headed “Asset recovery in the UK”, show what a lot of good work is being done in the UK. However, this is of absolutely no value unless other countries in the EU are upping their game at the same time. Page 6 of the Explanatory Memorandum states:

“In order to address the lack of data, the main economic analysis is … based on a model which uses proxy indicators to extrapolate from a detailed analysis of income and cost in the UK (the only Member State for which income and costs for all elements of the asset confiscation system can be estimated and which has a confiscation system that is a reasonable approximation of the maximal legislative sub- option)”.

So we are ahead of the game and, judging from that statement, most other countries are far behind us. The same report states that:

“EU Member States will progressively sign and ratify the 2005 Council of Europe Convention”—

which is on laundering, search, seizure and confiscation of the proceeds of crime.

“While this Convention is based on a relatively good consensus, seven EU Member States have not even signed it yet”.

So we have some justification in this country in being a trifle cynical. The UK is leading the way—we are taking on the associated costs and bureaucratic impediments—but who is following us?

My second reason for being concerned is that the trans-European experience on judicial co-operation has not always been an unqualified success. I refer in particular to the European arrest warrant. I declare an interest as a trustee of Fair Trials International. It is a mixed experience on access to interpreters, on access to the proper level of legal advice and on common bail conditions. Some noble Lords may say that we are talking about something completely different here, but in the Explanatory Memorandum there are some serious questions about levels of proof in different European countries, particularly a criminal standard of proof in countries such as Germany, while others, such as this country, use a civil standard of proof to facilitate confiscation. There is a lot of work to be done at the nitty-gritty end to make this decision meaningful.

My reasons for supporting opting in clearly outweigh those for standing aside, for the reasons that the noble Lord, Lord Hannay, gave. However, there is a lot to be done by the Government to ensure that the detailed work that will make this effective is given real impetus. If it is left in a half-formed state, not only will it be ineffective in tackling the problem, which we all agree is serious, but it will add another burden to this country which our competitor and fellow European states are not undertaking.

Trusts (Capital and Income) Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 25th April 2012 Grand Committee

[Lord Hodgson of Astley Abbotts]

My Lords, I am afraid that I am not a barrister or a solicitor and so the Earl of Chesterfield and Howe versus the Earl of Dartmouth do not adorn my lavatory walls—or, indeed, have not, until now, swung into my ken.

I welcome this small, technical but important legislation and I wish to address particularly the charitable aspects covered by Clause 4. I declare my interests, which are on the register in your Lordships’ House: I am president of the National Council for Voluntary Organisations; chairman of the Armed Forces Charity Advisory Committee; and I have been appointed by the Government to review the Charities Act 2006.

The existence of permanent endowment, as my noble friend clearly explained, has caused trustees of charities with permanent endowment a great deal of difficulty. If you force trustees to consider primarily the form in which they will get their return, you will get a series of artificial distinctions. By investing the capital gain—as opposed to dividend income or interest—you may end up with a seriously suboptimal result.

In recent years, a number of investment opportunities have arisen that are for capital gain only, particularly in the world of private equity. Where you are able to invest in smaller companies your return will almost certainly be in the growth of the value of the company. These companies cannot—and probably should not—pay dividends because they need to retain their profits to grow the business. It is therefore very important that this flexibility is built in to charitable investment.

As I understand it from my noble friend, this, of course, does not remove from trustees—I am sure that it does not—the need to balance future capital appreciation against the need to run the charity in the mean time, and, of course, the need to balance risk and return, which still applies as if these provisions had not been made. I welcome these proposals on the grounds that they are deregulatory and will free individual charities with permanent endowment and the Charity Commission from some administrative work.

As I understand it—and my noble friend Lord Phillips will correct me on this because he has forgotten more charity law than I will ever know—the right of the Charity Commission to make regulations on this matter has been in some dispute. Some lawyers have questioned whether it actually has these powers. The commission’s powers are, of course, open to challenge, as we saw with the public benefit test considerations last summer.

I have a further point of concern which the Committee may wish to explore. I have described the Bill as deregulatory, but in proposed new Section 104B (1), (2) and (3) there is a list of regulations. If, as I am sure my noble friend will tell me, the normal duties of trustees apply, do we really need to have this extensive list of regulations? Are we not able to trust the trustees? For example, proposed new Section 104B(2)(c) would require charity trustees to,

“notify the Commission of the passing, variation or revocation of such a resolution”.

That takes us back almost to where we started because, if resolutions are made in that way, they will have to be sent to the Charity Commission, the only difference being that the Charity Commission will not have to give its permission. I flag that up as a possibility we might wish to explore later.

I have given prior notice that I would like my noble friend to address the specific issue of the special position of English cathedrals under this legislation. The Church Commissioners and the Association of English Cathedrals are anxious to make a small amendment to Clause 4 which would enable cathedrals to resolve to invest their permanent endowment on a total return basis in accordance with the regulations which the Charity Commission is going to make. This comes about because ecclesiastical corporations are specifically excluded from the definition of a charity in Section 10 of the Charities Act 2011, which means that the powers of this Act do not apply to them, nor will the powers to be conferred by proposed new Sections 104A and 104B.

However, the relevant bodies corporate which are now established for each cathedral under the Cathedrals Measure 1999 exist for exclusively charitable purposes and are therefore charities for the purposes of the general law.

In recent years a number of cathedrals have expressed increasing interest in a total return investment, as the requirement to generate income from their permanent endowment is distorting their investment decisions. Cathedrals, of course, as ancient institutions, have more permanent endowment than most. Access to the total return investment allows for a more strategic portfolio of investments, which will provide a better balance between the needs of current and future beneficiaries. I hope that my noble friend, either now or at a later stage of the Bill, can address that point.

I described this earlier as a small, technical but important and welcome measure. However, it is only the first in a series of changes that need to be made if we are to realise the full value and potential for social impact investment. It does not, for example, address the issues or challenges arising from mixed-motive investment, a practice which is very close to total return investing. Mixed-motive investments are made by trustees on the basis partially that they are financial investments, and partially that they are programme-related investments. Programme-related investments are made to advance the charity’s purpose and are not considered to be financial investments at law.

I will give the Committee a brief example of how this might work. A charity which aims to improve educational opportunities and address homelessness invests in a property fund that will invest in properties for social enterprises. The fund focuses investments around three areas of social impact: homelessness, education and community development. Based on conversations with their fund manager, the trustees assess that 60 per cent of their investment can be justified as a programme-related investment that furthers their social mission. They decide that the remaining 40 per cent must be justified as a financial investment. Conversations with their investment advisers indicate that a commercial return on this sort of investment should be, say, 15 per cent per annum. To justify their investment, the trustees decide that there must therefore be a commercial return of 40 per cent and that they must get back the remaining 60 per cent in their PRI investment. When you blend the whole thing together, you have a return across the whole piece of 6 per cent. You can see how close this balanced rate of return is to the whole idea of total rate of return; it is very close indeed. It is a sadness to me that we have not been able to grasp this particular issue and extend this Bill by a series of small amendments to take in this additional way in which charities are now seeking to invest.

If I could glance over my noble friend’s speaking notes, I am sure that the answer to this will be, “Resist this”. It will be resisted because mixed-motive investment might be considered controversial—this is a Law Commission Bill—and because the Law Commission has not consulted on this precise point. Law Commission Bills are invariably consulted on in every aspect.

If that is my noble friend’s answer—and I am sure that it is going to be, but I may as well try—it would be helpful if he could give some indication during the later stages of the Bill whether his department has it in mind to bring forward ideas to tackle the mixed-motive investment as part of the overall approach to social investment.

Social impact investment is coming of age. It is a strategic issue for this country. However, there is a real danger of the necessary legislative changes required to facilitate it falling between departmental stools. My noble friend’s department, the Ministry of Justice, is producing this important but modest measure, yet not tackling other critical issues. The Law Commission will consult this autumn on further charity law reforms, but seems unlikely to tackle the necessary innovative leading edge issues.

The Financial Services Bill, at the Committee stage, is deeply depressing reading. I invite the Minister’s officials to look at the proceedings of the eighth sitting on Thursday 1 March, where attempts were made to raise the social impact investment idea. The amendments themselves were wrong; they were not acceptable. However, the Minister’s reply—it was Mark Hoban—indicated the dead hand of the Treasury across the whole of this area, still thinking in conventional investment terms of invested protection, whereas social impact investment melds financial and social return. It is not an investment for everybody, but the present situation, whereby one can easily give money to a project, but find it difficult to lend money to it, must be counterintuitive. People will be more encouraged to support these leading-edge charities and voluntary groups if there is a prospect of them getting their money back. That might encourage them, if they are successful, to put more money into the next project.

The Government have laid great stress on the need to create innovative ways of financing charities and voluntary groups that are seeking to tackle some of these most deeply entrenched social problems in our society. I hope that somebody, somewhere, in Whitehall is getting a grip of these various separate legislative proposals to ensure a proper degree of co-ordination and impact. The statutory stars are in alignment at the moment with all these pieces of legislation around, and it would be a great opportunity missed. Indeed, strategically, from the country’s point of view, it is a chance to make London the world centre of expertise for this rising and new activity.

Protection of Freedoms Bill

Lord Hodgson of Astley Abbotts Excerpts

Monday 12th March 2012 Lords Chamber

[Baroness Hamwee]

My Lords, the Government are indeed to be congratulated on having moved so positively and with such comparative speed following the report and their own consultation. I also congratulate the members of the parliamentary group and the individuals who have so bravely spoken out. I have one point to put and one question to ask.

The point is to encourage the Minister—not that I think he needs to be encouraged—with regard to the terminology, “fear, alarm, distress or anxiety”, as well as violence. I want to mention to the House that last week during the Report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, my noble friend Lord McNally, the Minister at the Ministry of Justice, put forward a definition of domestic violence that was agreed. It covers,

“threatening behaviour, violence or abuse whether psychological, physical, sexual, financial or emotional”.

As I say, I do not think that my noble friend needs encouragement, but if that is useful ammunition to pass on to those who are doing the drafting and who might be a little resistant to the extension, I hope he can use it. My question is about remedies. There is a provision in Section 3 of the 1997 Act for a restraining order. When the Act is amended, will that section remain available for use by a victim of an offence under either of the new sections? I am sorry that I did not give my noble friend notice of my question, but it only occurred to me during the first speech in this debate. Would Section 3 have to be used or is there an inherent right in the courts? I am thinking of an extreme situation, although they are all extreme, where someone is given a custodial sentence, but there is also a concern that he should stay away when he comes out of prison. I am particularly prompted in this because of the provision in Schedule 1 to the legal aid Bill which allows for civil legal aid services to be provided in relation to an injunction made under Section 3 of the Protection from Harassment Act 1997. I hope that everything which needs to be can be swept in the last knockings of this issue.

[Lord Hodgson of Astley Abbotts]

My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, “I hope that you will be very happy in your new home”. Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.

My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson—that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.

[Lord Marlesford]

Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships’ amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition’s Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.

--- Later in debate ---

I look forward to the Minister’s response and I very much hope that he will be able to reassure us that the Government have taken the purpose of this amendment to heart.

[Lord Hodgson of Astley Abbotts]

My Lords, I participated in the Second Reading debate in November. I have not participated in the stages since, although I have read the proceedings in Hansard with some care. I intend to ask my noble friend to reject these amendments but, before I turn to the substance of my remarks and because this is such a difficult and emotional subject, I hope the House will permit me a brief diversion.

At Second Reading, I made it clear that I thought the activities of those who preyed on children—or vulnerable adults, as the noble Baroness has just said—were repulsive. That was the word I used then and I use it again this afternoon. I went on to argue for the need for proportionality and the measurement of effectiveness and impact and so forth. Therefore, I was very disappointed when the noble Lord, Lord Rosser—I am pleased to see him in his place on the Front Bench—said in his winding-up remarks:

“It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety”.—[Official Report, 8/11/11; col. 219.]

I regard that as a cheap shot. I am happy to be told that my judgment is wrong, that my understanding of the law is wrong or that the practical implications of what I am proposing are wrong, but I am not prepared to be told that I put the reduction of the regulatory burden before the safety of children. That was unfair.

The noble Baroness, Lady Howarth, gave the House a graphic explanation of her work in this area. I will just add my own few words. My wife’s cousin is a forensic pathologist, and he undertakes for the noble Lord’s department post-mortems of the most searing kind. I talked to him about his work and I asked him if he did not find it rather macabre. He said, “Not really, because I am a detective. Some detectives will crawl across the carpet looking for clues in the fibres. I am finding the clues in people, and I am therefore able to convict the guilty and let the innocent go free”. Because I am squeamish, I also say, “Isn’t it rather strange to be dealing with corpses?”. He said, “By the natural order of things you get used to it but when we have a child brought into our post-mortem room, there is a palpable change in the atmosphere, the tension and the behaviour of the team”. Whatever I am saying about the need to not accept these amendments, it is not because I think that children should not be protected. That forensic pathologist’s stories of the things he has seen are harrowing beyond belief.

On 6 February 2012, the second day on Report, in moving his amendment, the noble Lord, Lord Bichard, said,

“first, that we cannot create a risk-free society; secondly, that the steps we take to minimise risk should be proportionate. For those reasons, I very much sympathise with and support the Government in seeking to strike the right balance in this very difficult area”.—[Official Report, 6/2/12; col. 107.]

I say amen to that. I entirely agree with the noble Lord. I further agree that getting the balance right is exceptionally difficult.

However, I argue that to some extent the Government have already got the balance right, which is why I shall ask my noble friend to resist this amendment. I do so for three reasons: first, it changes the relative importance of judgment as opposed to process; secondly, there is a bandwagon effect in this whole area, which will result from some of the wording of the noble Lord’s amendment; and, thirdly, there is the danger that this amendment will contribute to the further atomisation of our society.

On judgment versus process, I follow some of the remarks made by the noble Earl, Lord Erroll. When I was taking evidence on the preparation of the report Unshackling Good Neighbours, it was astonishing how many people saw the official check as the beginning and end of the matter. There is health and safety, and other areas, as well as the CRB. Too often, individuals did not wish or saw no reason to use or trust their individual judgment. My fear is that the more we push the process forward, the less people will feel that they need to use their judgment and intervene, because they feel that it is someone else’s responsibility.

Strangely, in the briefing we received from Fair Play for Children, some of that attitude reveals itself. It states:

“We also point out the possibility that the person, in applying for another post within the organisation, might find himself subject to scrutiny against the barred list, and barring revealed. That places employers at that stage in an invidious position of having had such a person working for them with children and then having to comply with statute to refuse the new job”.

I cannot for the life of me see what is “invidious” about this. It is about a proper, disciplined and clearly run business. If a person changes his job and has different responsibilities involving further exposure and involvement with children, at that point the employer is entitled to say, “I am afraid this is not something which you can become involved with because of the role you are now undertaking”. When I read that the,

“day to day supervision is a reference to such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned”,

I believe that the Government have got the balance about right.

On the bandwagon effect, subsection (4) of the new clause proposed under Amendment 5 in the name of the noble Lord, Lord Bichard, states:

“Guidance produced for the purposes of subsection (3) … shall recommend that such organisations as described, should seek to obtain a relevant enhanced criminal record certificate as a matter of best practice”.

The noble Lord may think that he will cut down the number of criminal records checked but, faced with the matter of best practice, individuals running charities, voluntary groups and sports clubs will face ever greater pressure to obtain an enhanced criminal record certificate. It will be argued that this is needed to be on the safe side. Charities have groups of people which depend on CRB checks, so they are not going to say it is not needed; rather they will say that, for access, it is best practice.

We saw lots of examples in the evidence given to us before we completed our report, Unshackling Good Neighbours. It is tragic to see how many people, rightly or wrongly, are put off from volunteering because they do not want to be CRB-checked. In many cases they did not need to be CRB-checked, but the authorities thought they should be in order to be on the safe side. The University of Oxford has advertised for students to help invigilate in its museums. The job requires sitting in a room or corridor and watching the exhibits so that visitors cannot remove or destroy them. But they now have to be CRB-checked. It is hard to see how the job falls within the requirements of a CRB check but, to be on the safe side, that is what the university wants to do.

Last, I turn to the atomisation effect. Social scientists say that our society is becoming atomised, as they call it, and social media mean that we live increasingly isolated lives. The noble Lord, Lord Bichard, in an interesting article in the House Magazine this week, talks about how social media provide the opportunity for grooming, and I agree with him absolutely on that. I said in my speech at Second Reading that this is one of the most difficult areas we have to tackle going forward. However, if we are not careful, we will enhance the selfish gene which lies within all of us. People say that they see no reason to help their town, village, street or community. To reverse this trend and encourage people to reconnect and get involved, we need to welcome them, not treat them as criminals.

It is a fact, thank goodness, that a fractional minority of people seeks to prey on children. The overwhelmingly vast majority of our fellow citizens are decent, law-abiding and want to do their best. It is with these people in mind that I urge my noble friend not to accept these amendments.

[Lord Peston]

Is the noble Lord saying that if we accept these amendments, there would be no net increase in the number of children who would be protected?

[Lord Hodgson of Astley Abbotts]

I cannot prove a negative, and that is one of the difficulties of arguing either for or against any form of regulation. You cannot prove what will happen. I suspect that there will be no net increase in the risk to children. I suspect that but I cannot prove it, just as the noble Lord cannot prove the contrary.

[Lord Addington]

My Lords, I rise to speak very briefly. Would my noble friends on the Front Bench explain one point? I dealt with a series of amendments that were quite well received by the government Front Bench—“better than half a loaf” was how I described it. Can they explain to the House the process of giving guidance to individual groups so that they know how the process of getting information from the group works and what guidance they will be given as to what they are supposed to do? A little more information about this might help.

I have come to the conclusion that everyone thinks the world they are talking about is totally unique. Sports bodies think that they are totally unique, as do schools. We now ask representatives from sports governing bodies to go into schools, which is an extension of good practice because when people get involved in a club early, that produces the best coaching, the most enthusiasm and the lowest drop-out rates in a sport. It is good for public health and everything else. Putting representatives of sports governing bodies into schools makes, I hope, for a better and more rounded system. Indeed, we tried something similar under the previous Government. There must be an interchange between these two groups.

I hope that my noble friend will tell me that we are talking to all these groups so that they know what they are doing and are having an effective interchange. If we do that, many of the concerns being expressed here will start to become, shall we say, more realistic. Moreover, there is no perfect system, and that is something we have to take into account. I call upon my noble friend to give us a little more insight into the process that the Government want to initiate because there is a great deal of chasing of shadows and fears being expressed in this area. Some of those fears are real and some are not, while some of them are potential fears. We cannot deal with them all, and we never have been able to. It does not matter how many checks you have if you have not caught that one person yet. Can my noble friend give us an idea about the ongoing structure that will be needed for this, because surely that is going to be the best way forward? We are all on the side of the angels, so let us not fight over which angels.

EUC Report: Internal Security Strategy

Lord Hodgson of Astley Abbotts Excerpts

Thursday 19th January 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I am a member of Sub-Committee F. I begin by thanking the noble Lord, Lord Hannay, for his excellent chairmanship of proceedings and for managing to dock our little boat so successfully. I also thank our clerk, Michael Collon, for his indefatigable work in making sure that we stayed on the straight and narrow, and our special adviser, Stephen Hawker. This is a complex and difficult area and without his advice and help we would have floundered.

I am firmly of the view that national security must be the responsibility of each member state, on two grounds. The first is that in a liberal, plural democracy, the ability and readiness of a country to defend its citizens is the fundamental part of the social contract by which we all coexist. Secondly, and no less importantly, the way that policing takes place is a reflection of history: the historical traditions of a country and the way that its society has developed. Traditions will be quite different from country to country. There is no one-size-fits-all approach.

Nevertheless, in that ghastly and hackneyed phrase, we live increasingly in a global community. The Commission's communication on the EU's internal security strategy, with its focus on the five areas that the noble Lord, Lord Hannay, read out, and which I will not repeat, makes it clear that there is a world dimension to these issues, quite apart from the EU dimension, which we have to take into account. I will repeat his quotation from paragraph 17 of our report, which states:

“The security of the United Kingdom does not begin or end at the water's edge, and cannot be defended independently of the security of other States”.

The complexities of trying, for example, to prevent terrorism or disrupt international crime networks are compounded when they are addressed through a multinational organisation such as the EU. Success in the five selected fields will require leadership of the highest quality, providing focus for dedicated and expert resources, deployed consistently over time. This is painstaking work; these are hard yards to gain. My concern is that our report showed that to some extent the EU has so far failed to address the challenges and yardsticks that the approach requires.

I turn first to leadership. As the noble Lord, Lord Hannay, pointed out, we now have the standing committee COSI whose chairmanship rotates every six months, in line with the EU presidency. I urge my noble friend to readdress this point. This is a committee of critical importance, whose chairman has barely got his feet under the table before he is moved on. On that basis we cannot get the consistent and focused leadership of the very expert resources that we need. We need to find a way—I am no expert in the diplomatic niceties of this—to ensure that somebody takes responsibility for a longer period of time. If we heard that one of our largest private companies was rotating its chairmanship every six months, we would think that it had taken leave of its senses.

The membership of COSI seems to be complex and frequently changing. I understand that so far it has not included representatives of FRONTEX or Europol. Given that two of the five objectives of COSI are improved border management and the disruption of international crime networks, not having FRONTEX and Europol representatives on the committee seems at the very least to be counterintuitive. Further down the chain of command, the situation is even more unsatisfactory. As the noble Lord, Lord Hannay, referred to, box 10 on page 51 of our report lists the 14 bodies involved: seven working parties, three working groups, one group, one task force, one committee and one strategic committee. To be candid, this does not give me confidence that we will have a joined-up approach because, to be effective in this area, very close attention to tiny details is essential and good communication is no less so. From my point of view, there is a good deal of work to be done on the strategic shape of the architecture of the EU’s approach to this very important area, which we have highlighted in our report.

This is all at EU level and, as I have already noted, internal security is a matter for each member state, so, as the noble Lord, Lord Hannay, said, there is also a balance to be struck between, on the one hand, the freedom, privacy and prevention of unnecessary intrusion that the citizen is entitled to enjoy and, on the other, the need for the protection of the citizen. As the work on the EU’s internal security strategy develops and gets traction, I hope there will be an important scrutiny role to ensure that this balance is maintained by the European Parliament, national Parliaments and intergovernmental activities and organisations. I hope very much that we will keep our eye firmly on this one, because the creep of intrusion into our individual personal lives on the grounds that national security demands it is very insidious.

The rest of my remarks focus on cyberspace and cybersecurity. On 15 September last year, an article in the Times quoted a Cabinet Office source that last year intellectual property theft cost UK companies £9.2 billion, industrial espionage cost UK plc £7.6 billion, online theft cost business £1.3 billion, blackmail cost business £2.2 billion and identity theft cost consumers £1.7 billion. This is clearly an area that does not respect national boundaries.

However, the way we tackle cybersecurity is made more challenging by three features. First, we all increasingly wish to be in open communication. We wish to do more and more online. We are being encouraged to do more and more online. We believe our prosperity and future growth depend on online communication, so the channels by which the criminal can approach us are widening and broadening all the time.

The second issue is the fear of fraud being published. It is perfectly clear that many firms do not wish the news of a cyberattack to be published. They fear that it may lead to imitative attacks. The knowledge that a firm has had an attack may lead others to try the same approach and, of course, very importantly, it saps public confidence in a firm’s reputation, and nowhere is that more important than in financial services. So the second challenge is: how do we make sure that people, firms and financial institutions bring forward the information without fear of disadvantaging themselves?

Thirdly, and finally, what sort of organisation do we need to tackle these types of crimes? We had some powerful evidence about how conventional structures in government and policing are hierarchical. They are age based, and very often they are arts graduate-training based. In the cyber area, the ideal structure is very different. It is not hierarchical at all. It is completely flat. It consists of very much younger people, and it has a physics and engineering-based orientation. That is going to present a real challenge to COSI and other organisations about how you integrate those two very different approaches.

As far as the EU is concerned there is a further challenge: namely, the variable understanding of the threat and its seriousness. At paragraph 19, we refer to the evidence that we took from William Shapcott, the former director of SitCen. He said:

“You can roughly divide the member states into three groups: those who are threatened and who really understand it. The UK is clearly in that group, and the Germans and the French are as well. Then there is a group that possibly is threatened but maybe doesn’t properly register it, and then maybe some that aren’t terribly threatened”.

He went on to explain that as the threats changed so would the groups, which could learn from one another.

That takes me to the really important point about the establishment of the cybercrime centre as being a means whereby experience, knowledge and information can be shared. I am delighted that the Government have decided that it should not be placed at Heraklion in Crete as part of ENISA. We have kicked poor old ENISA often enough and hard enough. I am delighted that there will not be a new body and I hope very much that it will find its way into Europol because it is, after all, crime that we are talking about.

As part of that, I hope that the Government will give some attention to a sub-theme. In our sub-committee, we have had quite a lot of evidence that in a number of cases bilateral arrangements between individual countries have led to the bypassing of EU institutions. We have heard about it as regards Europol in particular. Therefore, instead of information and intelligence being routed through an EU body, it is done on the basis of relationships between the police forces of individual countries. I do not mind people having bilateral relationships but there should be a discouragement of not making sure that Europol goes into the link. If we have a patchwork quilt of relationships depending on who knows who, who gets on with who and who trusts who, critical issues will get lost and overlooked and their significance will not be understood.

I hope that the Government will make some efforts to encourage, as far as we in this country and other countries are concerned, the use of the valuable resources that will be built up in these EU agencies. It puts a responsibility on the EU agency itself. We had a comment from a Dutchman who said that Europol was like a black box into which you put a comment and nothing came back. There is a responsibility on the agency to respond. It was a fascinating report on a fascinating area.

In my final minute, perhaps I may refer my noble friend to the UK cybersecurity strategy document published in November 2011. It is very interesting and a very good read, and lots of interesting recommendations are listed at the back. It covers nearly all the departments from BIS to DCMS to the Foreign Office to MoD. It has a huge range of responses required from individual government departments. However, there is very little about our relationships with Europe and COSI. There is something but not a lot. I very much hope that the Government will give some weight to developing our European response to these intransigent, intractable and difficult issues. Unless national Governments put some weight behind COSI and bodies like that, there is no hope that we shall be able to attack these extraordinarily challenging crimes and crime networks satisfactorily.