Immigration Bill

Lord Lucas Excerpts

Wednesday 20th January 2016 Lords Chamber

[Lord Ashton of Hyde]

My Lords, I thank the two noble Baronesses who have spoken. I start by making the general point that these powers will be used only for repeat offenders. They will not be used widely; they are for the most egregious offenders. As well as employing illegal workers, they must already have had illegal working penalties or convictions.

Clause 12, which gives effect to Schedule 3, sets out the regime for illegal working closure notices and illegal working compliance orders. The clause and schedule provide new powers to deal with businesses that repeatedly flout the law by employing illegal workers. The intention is to use them in the most serious cases, as I have just indicated, where civil penalties or previous convictions have failed to change employer behaviour. Such employers may also be exploiting their workers, including legal workers, by not paying the minimum wage or by breaking health and safety legislation. When immigration officers conduct an enforcement visit under existing powers to an employer’s premises, any illegal workers identified may be arrested and the employer may be liable to pay a civil penalty or to prosecution for an offence. Despite this, the employer may continue to use illegal workers who are not apprehended at the time of the visit or who are recruited subsequently. Furthermore, some businesses dissolve to evade sanctions and then reopen in a new name and continue their non-compliance as before. My notes tell me that this is often referred to as “phoenixism” and that may be so. The provisions are designed to break this cycle of non-compliant business behaviour.

The provisions create a new power for immigration officers to close premises for up to 48 hours in certain cases, where the employer or a connected person in relation to the employer has previously faced sanctions for employing illegal workers. An application must be made to a court for an illegal working compliance order, unless the closure notice is cancelled. This compliance order may extend the closure of the premises or make any order the court decides is appropriate to prevent an employer operating at the premises from employing an illegal worker. This might include ordering the business to perform right-to-work checks to ensure that illegal workers are not employed, or to permit immigration officers to enter the premises to ensure that the employer is complying with illegal working rules.

These provisions are loosely modelled on the power to close premises associated with nuisance or disorder, which is in Part 4 of the Anti-social Behaviour, Crime and Policing Act 2014. Let me reassure the House that this power will be subject to appropriate safeguards and its use will not be considered lightly. It is designed to be used as a last resort in the most serious cases, where established methods of securing compliance have been unsuccessful, by limiting the duration of the closure notice that may be served by immigration officers; by making the courts responsible for determining whether a compliance order should be imposed; by providing a right of appeal against a compliance order; and by providing a mechanism to apply for compensation, should mistakes be made, we believe that Schedule 3 provides appropriate judicial oversight of the use of these powers and sufficient safeguards and remedies for those who feel that they have been treated unfairly.

The noble Baronesses, Lady Hamwee and Lady Ludford, talked about what records will be kept and the noble Baroness, Lady Ludford, talked about the transparency in the process. Guidance may be published under paragraph 16 of Schedule 3, after appropriate consultation, which would provide for guidance for immigration officers in respect of how their immigration powers should be exercised and recorded. We will ensure that immigration officers make operational records in their pocket notebooks, as is standard practice, and that this is supported by guidance issued under paragraph 16. The Home Office will monitor compliance as a matter of course.

On the question from the noble Baroness, Lady Hamwee, the compensation mechanism in paragraph 15 does not apply where the court has made an order, since an adversely affected party should, in this case, appeal the order. The court, on hearing an appeal, may make any order it considers appropriate under paragraph 9(5) and this might include the award of compensation. The noble Baroness also asked whether compensation should be payable when inaccurate information is presented to a court by an immigration officer. If a court considers that the conditions for issuing the notice under paragraph 1(3) or paragraph 1(6) were not satisfied, the court may award compensation to a claimant who has suffered financial loss, if it considers it is appropriate. The compensation mechanism in paragraph 15(3), as I have just said, does not apply when the court has made an order, since the adversely affected party should appeal the order. Compensation may be payable at the discretion of the court if the immigration officer supplied inaccurate information to the court as to whether any illegal workers were present at the property or if the employer had not previously been convicted of an immigration offence or received an immigration penalty. Compensation may also be payable when the immigration officer has not used reasonable efforts to notify people who live at or have an interest in the property.

As to the point that the initial closure order should be issued by a court and not an immigration officer, the Government respectfully disagree. We think that the immediacy of the present approach is designed to serve as a deterrent to employers who have repeatedly flouted illegal working rules. The present approach allows for the trigger conditions to be applied to a particular moment in time. Imposing a requirement for an initial court order would give the employer an opportunity to hide their illegal working, including through dissolving the company.

The noble Baroness, Lady Ludford, mentioned that she thought the powers were oppressive and contrary to the rule of law. I point out that the closure of a business premises by law enforcement officers is not unprecedented and the proposal in this Bill, including the safeguards, is modelled on the approach taken in the Anti-social Behaviour, Crime and Policing Act 2014. As a result of those remarks, I hope that in due course the noble Baroness will accept that Clause 12 and Schedule 3, to which it gives effect, should remain part of the Bill.

Turning to the amendments tabled by the noble Baroness, Lady Hamwee, Amendment 135 would require the immigration officer to consult the employer,

“people who live on the premises … and … any person who has an interest in the premises”.

The officer will already be required by Schedule 3 to consult any person they think appropriate before issuing a closure notice, and this may include many of those interested parties. In addition, immigration officers are already required to make reasonable efforts to inform any person who lives on the premises and any person who has an interest in the premises that the notice is going to be issued. A requirement to also consult such people—who, I remind noble Lords, have already committed an illegal working offence—seems an unnecessary additional requirement. Also, paragraph 1 makes it clear that a closure notice cannot prohibit access to premises to any person who habitually lives on the premises.

The amendment also requires the employer to be consulted. I can reassure noble Lords that employers will be given an opportunity to demonstrate that they have complied with the law in this area. The decision to serve a closure notice will not be taken lightly. If the employer can produce evidence that right-to-work checks have been undertaken, Schedule 3 makes it clear that the notice must not be issued, or if such evidence is produced after the notice has been issued, the notice may be cancelled. The whole purpose of serving the closure notice is because the business has repeatedly flouted the law in this area. It will be a serious case where the established civil penalty scheme or previous convictions have not prevented continued illegal behaviour.

Amendment 146 would have the effect of always giving the court the discretion to award compensation, even where immigration officers have acted lawfully and the claimant was responsible for illegal working on the premises. This would frustrate the objective of the proposed scheme of closure notices, which is to strengthen our ability to deal with repeat offenders involved in the use of illegal workers. It would be inappropriate to provide the facility for such persons to obtain compensation for financial loss where the immigration authorities have acted correctly in closing their premises.

In the light of my explanation of these provisions, I hope that the noble Baroness will feel able not to press her amendments.

[Lord Lucas (Con)]

My Lords, perhaps I might ask my noble friend a couple of questions. He said several times that this is to deal with people who are repeat offenders—the most serious offenders—but paragraph 1(6) requires only one offence. As with certain members of the Government who make mistakes in employing illegal workers from time to time, as do many people, it seems unfair to lump them in with people who are deliberately flouting immigration rules. It sounds very much from what my noble friend is saying that the guidance would require many more offences to have been committed than just the one in the previous three years. I would be comforted if he could reinforce that that is the case and say why paragraph 1(6) says only once.

The other thing that I wanted to raise with him is the conjunction between paragraph 1(3) and 1(11). Surely if the person who is employing gets even a few moments’ prior notice that this procedure is about to be activated, he has a “Lord Sugar” defence—all he has to say is, “You’re fired”, and he is no longer employing anyone.

[Lord Ashton of Hyde]

My Lords, in answer to the first question, the whole point is that it is not just sub-paragraph (6) that has to be taken into account before a closure notice is provided; it is in combination with sub-paragraph (3). The condition is that an employer is employing someone illegally and, in sub-paragraph (6), they have to have previously been convicted of an offence. If an immigration officer suspects that illegal working is going on, they can apply for the closure notice if, and only if, sub-paragraph (6) also applies where they have previous convictions in respect of illegal working.

On my noble friend’s second point about giving notice, that is precisely why for the first 24 hours, which may be extended to 48 hours, we feel that an immediate closure notice can be served, before the court is applied to, to prevent employers doing things which would enable them to continue employing illegal workers. The fact that we can do it immediately, albeit for only up to 48 hours, is an important factor in clamping down on this offence.

[Lord Lucas]

My Lords, when paragraph 1(11) says,

“An illegal working closure notice may be issued only if reasonable efforts have been made to inform”,

that surely says that the person who is running the premises has to be told beforehand that a notice is to be issued and therefore there is a small space of time in which people can be disemployed. I agree that a company could not be closed. I understand how sub-paragraphs (3) and (6) work together, but sub-paragraph (6) is the bit that covers the previous convictions and, in my opinion, it does not match the words of my noble friend that this is for the most serious offences and the really rogue offenders. This catches anyone who has made one mistake beforehand. If we are giving the Executive this power, which I do not disapprove of in extreme cases, we should restrict it to extreme cases and not include a person who makes a second mistake within three years, which in the retail industry is not hard to do.

[Lord Ashton of Hyde]

My Lords, we are talking about illegal working by illegal immigrants. It is just a question of what you define as serious. In our view, with employers who have previously been convicted of illegal working offences and who are suspected of employing illegal workers, we regard that as serious. I think it is a question of definition whether you have to have had one, two or three convictions before it applies. At the moment that is where we consider it should be and we consider that serious.

With regard to my noble friend’s earlier point, sub-paragraph (11) says that there is a duty to inform,

“people who live on the premises”—

not necessarily the employer—but we think it is reasonable that people who live on a premises should be informed that a premises might be closed.

Psychoactive Substances Bill [HL]

Lord Lucas Excerpts

Tuesday 30th June 2015 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, the “other” must be implied and I see no reason why it should not be expressed. I think the amendment carries itself fairly easily.

[Lord Lucas (Con)]

My Lords, I do not like having a law which states as a fact something which is clearly wrong. I hope my noble friend will therefore accept these amendments, in spirit if not in the exact letter.

[Lord Deben (Con)]

When my noble friend comes to do that, perhaps she will help me with the problem that I have got. I feel that “instrument” is probably not the right word, particularly when used with food. This is one of the ugliest bits of this ugly Bill, and any prettying up of this part would be very helpful.

--- Later in debate ---

[Lord Lucas]

My Lords, I thought that that was a superb explanation but I want to tax the Minister, if I might. There are many ordinary substances—glue being the obvious one, but there are a lot of other things such as spruce logs, which you can burn—which you can use in extremis in the absence of other things for psychoactive purposes. Usually, a supplier of these things would not have to ask themselves whether I intended to use the tube of UHU for psychoactive purposes. When this law is enforced, what rules will apply to a retailer when they are selling something? Most plastic packaging when burnt or heated will produce fumes with a psychoactive effect. What does the retailer have to do not to be reckless? If they think that I am someone who might do that sort of thing, does that qualify? If I sell something to someone, not particularly caring what they will use it for, and they go and kill themselves by using it for psychoactive purposes, am I going to be come after? What are the rules? What do I have to do as a retailer of perfectly ordinary things if there is a potential psychoactive use for them?

[Lord Bates]

My noble friend is correct in the sense that there are rules that exist relating to solvent abuse, the use of solvents in that regard and protections for retailers. However, we are very clear here as to the target audience for the purpose of this measure: individuals who are seeking to manufacture psychoactive substances for the purposes of being consumed by people for their psychoactive effect, or to supply, import or export. We do not believe that they will come into the categories of what would be appropriate retail activity. My noble friend makes a wider point, though. I will reflect again with officials on his remarks in the Official Report, and if I can expand upon that point to provide some additional guidance I will certainly write to him and copy it to other Members of the Committee.

Anti-social Behaviour, Crime and Policing Bill

Lord Lucas Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Hunt of Chesterton (Lab)]

My Lords, the worrying thing about the remarks made by my noble friend Lady Smith is the idea that the police decide whether to prosecute on the basis of their chances of winning or losing some court case. That is extremely worrying. It means that the law as put into practice depends on someone’s estimate of whether the police should deal with somebody who might sue them, and who has a big enough legal budget to be able to do that. This seems to call into question the whole legal basis of the way we operate. I very much hope the Minister will explain the situation and say that decisions are not being taken according to the chances in the law court. That seems a complete negation of how we are supposed to operate our society.

[Lord Lucas (Con)]

My Lords, when my childhood friend murdered her husband, she did so with a kitchen knife. It has always been my impression that people who get into that sort of situation domestically use whatever weapon is to hand. I would be very interested if the Minister could provide some evidence as to whether people who hold firearms licences or shotgun licences—I hold both—are more or less likely to murder someone than people who do not hold such licences. Do we actually have a problem here, in the general sense? Looking at things in the round, are we being effective in issuing licences, as we ought to do, to people who are generally less likely to murder someone—or are they more likely to murder someone? What are the statistics for the country as a whole?

If, as I rather suspect, we find that people who are issued with such licences are generally much more law-abiding than the population as a whole, perhaps the amendment does not address a real problem. Or rather, it addresses not a problem that exists in the round, but a particular problem with how the police are assessing individual cases—when, perhaps, they have evidence that someone is not suitable, and are not taking action on that evidence.

It is difficult to see what, under subsection (2) of proposed new Section 28B of the Firearms Act, the police could do to get more evidence than they already have as to the suitability or unsuitability of someone to hold a shotgun licence. What is,

“substantiated evidence … of domestic violence, or drug or alcohol abuse”,

if not the records and evidence that the police already hold? Surely they are not going to go casting around for rumours, because such evidence would not be substantiated. It does not seem to me that one could mount a quasi-criminal investigation without any evidence of a crime, merely to see if one could entrap a rumour or two. I do not know what could be done under the amendment that, as the noble Earl, Lord Lytton, said, is not already being done as part of the process.

However, if there is a step in the process whereby the police have evidence but feel frightened to act on it—this seemed to be the idea emerging from the way in which the noble Baroness, Lady Smith of Basildon, addressed her amendment—perhaps we should take the action suggested. But first, as I said earlier, I would be interested to know whether we are dealing with a real problem, or whether this is something of a rarity.

[Lord Hunt of Chesterton]

My Lords, we have heard one story about a knife, but I have a good friend in America and his wife took a gun to him. It does happen with guns too.

[Lord Lucas]

But if one weapon were not to hand, do people not tend to use whatever is to hand? I suspect that we will find that people who own guns are rather less likely to murder people than those who do not.

[Lord Harris of Haringey (Lab)]

My Lords, we are in danger of having a slightly false debate on this subject. Let us start from the simple fact that firearms and shotguns are, very easily, potentially lethal weapons. What is more, they are lethal weapons that can operate at some distance. They are therefore dangerous items. It has been decided by Parliament, quite properly, that there should be a licensing regime—that checks should be applied to individuals who hold them.

The amendment is not about comparing the population of those who are licensed firearms holders with those who are not; it is about a very specific sub-category. This is not an amendment that will stop, or is intended to stop, armed robbers. It is not about people who start off with malign intent. It is about the nature of the checks, and how they should be used, in very restricted circumstances. It is about people who would set out to acquire a firearm not because they want to rob a bank, but probably for sporting purposes; that is, I assume, the reason why the noble Lords who hold such licences apply for them, and use firearms.

The amendment suggests that, as part of the checks, if there is a history of the individual concerned having been involved in incidents of,

“violent conduct, domestic violence, or drug or alcohol abuse”,

the presumption should be that that person will be denied a licence. This is not about the application of open discretion by police officers. It says that the presumption will be that that individual will not be allowed a weapon.

This is nothing to do with people who acquire weapons illegally, and nothing to do with people who are trying to acquire weapons for other purposes; it simply says that if people with that particular sort of history apply to legally hold a lethal firearm, the presumption should be that they will not be allowed to do that. I would have thought that was eminently sensible. I find it almost unthinkable that that is not the starting point that will be adopted in your Lordships’ House.

What is being proposed by this very carefully worded amendment is that, in those cases where there are prima facie reasons that people may lose control and not use the weapons for the purposes for which they have sought a firearms licence—for example, they may murder or attack their partner or be so inebriated or under the influence of drugs that they would use a firearm against another person—the presumption should be that they are not allowed a licence.

No doubt the noble Earl, Lord Lytton, and others will say, “Hang on, the chiefs of police have discretion in those cases”. However, the point that my noble friend Lady Smith of Basildon made was that, given that there is discretion and given the way in which it operates, that is not sufficient. By passing this amendment, we would give those chief police officers not just a discretion, as we would be saying, “The presumption is that you do not put a lethal firearm in the hands of somebody who has committed domestic violence or has a history of alcohol abuse or drug abuse”. Surely, that provision is sensible, is a safeguard and is something on which we can all agree.

Anti-social Behaviour, Crime and Policing Bill

Lord Lucas Excerpts

Wednesday 8th January 2014 Lords Chamber

[Lord Lucas (Con)]

My Lords, I share the noble Earl’s appreciation of the late Paul Goggins, in my case from when he was a very good Prisons Minister. I am equally sad to learn of his death.

In the context of these amendments I share his concerns that we should be looking at detention for, as it were, a first offence; for something which, as my noble friend Lady Hamwee pointed out, might not even be a criminal offence. If it is a criminal offence, of course, we do not need the detention powers in the first place. I look forward with interest to what my noble friend has to say. I hope that he has been allowed to be more helpful to my noble friend Lady Hamwee than he was on a previous amendment.

[Baroness Smith of Basildon]

My Lords, I thank the noble Earl, Lord Listowel, for his generous and kind comments, which we appreciate, for our former colleague Paul Goggins. He was an exceptional MP and, for those who knew him and were very fond him, he was an exceptional person as well. We are very sad to lose him.

On the amendments, rather along the lines of the issues raised by my noble friend Lord Harris of Haringey, perhaps I may ask some questions about dispersal orders. The extension of dispersal orders that the Government are proposing seems quite strange. Previously, dispersal orders were for 24 hours, with democratic oversight in consultation with the local authority, and covered a restrained geographical area. That has changed because under the Government’s proposals they are for 48 hours with a much wider geographical area. There is no involvement of the local authority but there is the involvement of a member of the police force of the rank of inspector or above.

The Minister will recall that we discussed in Committee the lack of clarity around the operation of dispersal orders. A number of questions were put to the Minister but we did not get answers then. Given this extension and the change in how the Government want dispersal orders to operate, it is a concern that the detention, particularly for young children, would remain for a much broader and wider offence about which we have had very little information, and I read the debate again today. It raises some questions for the Minister to answer. Why does he think that these dispersal orders are appropriate? Does he think it likely that, because of the wider area, the increased length of time and the fact that there is no democratic oversight, we shall see more dispersal orders? Is it appropriate in those cases that we may see more breaches of them?

It raises a concern that something as minor as a dispersal order, which can be issued by a police offer on the spur of the moment, when there is not really a process in the way we would expect, could lead to detention. The extension of how the Government are planning to use dispersal orders in the future, retaining detention for young people if there is a breach, gives rise to concern. Will the Minister explain why he thinks it appropriate, how he thinks it will be used and on how many occasions? I am concerned that we may see an increase in dispersal orders. I am very unhappy about the Government’s proposals in any case, but if we see an increase there could be an increased number of breaches and we could then see detention of young people. Will the Minister explain how this will operate and why he thinks it is appropriate?

Crime and Courts Bill [HL]

Lord Lucas Excerpts

Monday 25th March 2013 Lords Chamber

Moved by

[Lord Lucas]

11A: Line 11, leave out from beginning to “, the” in line 24

--- Later in debate ---

[Lord Lucas]

In moving Amendment 11A I shall speak also to the other amendments in my name in this group and, indeed, to one that does not appear in the groupings list, Amendment 17G, unless the list has been amended subsequently, as this amendment is clearly part of the same series.

I start by declaring an interest: I run the Good Schools Guide. It seems to me that the Good Schools Guide is clearly going to have register under these clauses. I am not going to address myself to the virtue or otherwise of this approach to press regulation—I am sure that others will do that better than I could. I am going to confine my remarks to, “Well, if the Government are going to do it this way, how could they do it better?”. As far as I understand it, the procedure today is that, as with the other groups, we will deal with everything as a whole. But if we get to the point where we are faced with a widespread disagreement with what the Government are doing and an unwillingness to listen, we have the option of re-debating each of the amendments one by one when we reach their place in the Marshalled List if the noble Lord whose amendment it is chooses to move it.

The crucial thing from my point of view is exactly what the Government intend to do with their manuscript amendment. I was comforted very much by what the noble Lord, Lord McNally, said—that this is essentially a device to make sure that the Commons has Easter to think through exactly how to deal with small bloggers and, given the width of the Commons’ powers, also to make any other necessary changes to these clauses. Therefore, if we are dealing with small amendments and things we think need further thought, that government amendment is enough to enable these to be achieved, and therefore all we need to do is speak to the Government today and, over the next three weeks, good sense will gradually percolate through and result in the Commons—when the Government’s amendment comes back to us—having taken the appropriate action elsewhere within this group. I hope that that is the correct understanding. I am sure that my noble friend will confirm if that is the case.

I start with Amendment 11A. I understand what my noble friend says about the purpose of the lines that I am seeking to take out—they are to deal with circumstances when the regulator has gone doolally—but I think that this is the wrong way to do that. I can see that as a possibility, but by doing it this way the Government are introducing uncertainty into the whole question of whether exemplary damages apply to a publisher. By joining a regulator, you can exempt yourself from exemplary damages. You sign up to the regulator, you do things its way and you are not in danger of exemplary damages. You do not have to get insurance against exemplary damages—which is not exactly going to be cheap—and you know that you have gone down the road that Leveson has recommended.

By introducing this uncertainty, saying that the courts can overturn your exemption, you are inviting every opportunist attacker to have a go at you, to see if he can tip you into exemplary damages. I cannot see that introducing that level of uncertainty, danger and risk in a procedure which is supposed to encourage people to sign up to avoid that risk, is the right way of doing it. If we are worried about the regulator going native then we need to provide for that in the charter and provide some way of bringing a regulator back to where they should be. Indeed, I suspect that if we had that then it might well be that Parliament would legislate again anyway. Surely this added uncertainty is not the right way to deal with the problem.

I turn to the next amendments in my group, Amendments 17C and 17G. The object of these paragraphs is effectively to force publishers to use arbitration. I have two objections to that. The first is that there ought to be a real incentive for those who offer the arbitration, for the regulator, to make it good and something that publishers want to use. If there is no such incentive then there is the tendency, as exemplified in Australia for instance, for the arbitrator to start to get really rather eccentric views on what publishers should be doing and to seek to widen its own authority by pushing the boundaries and the rules in ways which I am sure Parliament is not currently envisaging.

It seems to me best in principle that an arbitration, if that is offered, should be offered freely. I am sure that those like me who have had some experience of the uncertainties of the court will go for arbitration first as a matter of course if it is well done—and no reason why it should not be.

Secondly, however, there are many cases in the world of publishing that are seriously complicated things. They can be dealt with by arbitration but actually are far better dealt with by the courts. Surely we want to allow the decision to continue to be made by either side in the argument that a particular case would be better dealt with by a court, with the additional powers and procedures that courts have. I cannot see why we are effectively ruling that out by this particular pattern of penalties.

We come to my amendment to Amendment 18, which is to take out subsections (3) and (4). I think that I am proposing this amendment because I do not understand the wording of those clauses. I understood my noble friend when he addressed this and said that, clearly, he wanted to see the Huffington Post included as a publisher. But it seems to me that subsection (3) removes, at least if not the Huffington Post in the exact way that it operates, many Huffington Post-like potential publishers from the scope of “relevant publisher”. It says:

“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for content of the material, if the person did not post the material on the site”—

in other words, if the material appeared on that site by another agency.

Well, fine; but suppose the publisher—whatever they be called; “Comment is free” would be a pretty good example—had offered payment to the person who posted that article on the website, or had commissioned it, or had merely given permission for it, as one has to with “Comment is free”. You cannot just post something on that site; you have to get its agreement to posting it. Effectively, in the likes of “Comment is free”, you are creating a newspaper, but it is not made up in the usual way; it is made up of unpaid—although there is no reason why they should not be paid—contributions from outsiders. They may well have been moderated, as is allowed in subsection (4), which effectively means edited. Permission has been given and sometimes contributions are sought, in that they might say, “We would like something like that—who shall we ask to make the posting?”. The wording of subsection (3), as it is now, allows some very major businesses to escape this set of clauses entirely. They may not exist at the moment but, if you allow them to exist under this clause, I think that they will get through. That may be my misunderstanding of how the wording operates, but it certainly seems the case to me.

Amendment 19A is my original take on how to deal with the small bloggers problem. Essentially, most publishers of any ambition are going to have to join this regulator, and my noble friend clearly expressed the intention of the Government and Lord Justice Leveson that this should be the case. But a lot of these publishers, particularly at the early stages of their existence, when they are pretty sharp-edged and contentious, do not have much income. They survive on the sheer effort of a few individuals, who may scrape a living through journalism elsewhere, or do something else to keep body and soul together, but are not earning a lot from the publishing enterprise that they have founded. If the regulator charges a large fee for annual membership or charges little bloggers full fees for access to the compulsory arbitration service, we are effectively creating quite a high barrier to entry for new publishers. We are saying that they will have to find £100,000 or £200,000 to deal with those charges before they are allowed to become a publisher.

I am sure that that is not the Government’s intention, but it is one of the reasons why their own amendment does not go far enough, and dealing with this issue is probably a matter for the charter and not for the Bill. But it is important to make sure that we are not in this Bill introducing a barrier to entry for new publishers, who will generally feel obliged to register. Unless there is a very clear moment when they transition from being a small blogger, in the words of the government amendment, to a not small blogger, they will register early for their own protection. But if they face the sort of fees that a vexatious litigant could use to really punish them, just by putting them through the procedures, we will put in place a real barrier. I am sure that my noble friend realises that there are people around the world with whom you can get into severe difficulty if you say what you think about them, such as the Scientologists. That is not an uncommon feature, and we should not create a barrier for entry into such controversial and, in the overall scheme of things, worthwhile activities.

My other amendments, Amendments 131B and following, are slightly further on. I am sure that this is my misreading, but it seems to me that there is nothing in the wording that exempts the New York Times, or Le Monde, from having to register. We are going back to our imperial habits and stretching our net across the world. They are certainly publishers of news on a large scale about the United Kingdom, but they are surely not intended to be caught and have to register just because they choose to report what is going on in these islands, on page 59. If that is the intention, I feel that it is the wrong one.

The second part of Amendment 131B is really a companion to the limitation of fees and costs for small publishers. If the regulator has to run at a loss on small publishers, subsidising their fees and arbitration costs out of the fees and costs charged to larger publishers, it may decide that it really cannot be bothered and say, “You’re not big enough yet—go away”. If the regulator says that to you at the moment, you are caught, because you cannot join the regulator and, therefore, you are in for exemplary damages, without the option. I do not think that that should be the case.

--- Later in debate ---

[Lord Puttnam]

Nothing in the world will delight me more than to see the Defamation Bill passed in its original form.

[Lord Lucas]

My noble friend has been suspended above his seat for a longer time than the Maharishi Yogi ever achieved. At risk of prolonging that, before my noble friend sits down, will he confirm, in order that he might get his supper this hour rather than next, that the matters that the noble Lord, Lord Stevenson, raised in his speech will be under active consideration in the Commons before this Bill returns to this House?

[Lord McNally]

I will look at what the noble Lord, Lord Stevenson, raised, but I warn the House against the idea that what is going back to the House of Commons is a reopening of these discussions. We have said what we want to see passed, we have asked noble Lords to withdraw. I have explained. I do not want to mislead the House. The Commons will be able to consider only their amendments that have been amended by this House. For example, if we do not today amend Commons Amendment 14, that amendment will no longer be in play during the next round of ping-pong. We are not sending the Bill back to the Commons for another go. Quite frankly, that would be extremely dangerous. My reply was carefully crafted by many hands far more expert than mine in a way that I hope gives the assurances that were sought in raising the amendments, not least those tabled by the noble Lord, Lord Skidelsky, However, the way that ping-pong works keeps the debate very tight and I do not want to mislead the House that it allows a rerun of negotiations on this. To even suggest that would be a bad mistake.

[Lord Lucas]

My Lords, I am very grateful to the Minister for all the time he has taken on my amendments. I would quarrel with him in his interpretation of how ping-pong works. I spent time talking to the clerks at this end and in another place before I put down my amendments, and my understanding is that the other place has very wide powers to suggest amendments in lieu; it is not restricted to individual amendments. The Government’s amendment on small bloggers will allow amendments to be made at any other position within this group of amendments. I may be misquoting the clerks—I am quite capable of that—but that was what entered my brain as a result of the conversations I had before I put down my amendments. In particular, I should be sad if the conversations that I started on my Amendment 18C were not to have any result.

My noble friend doubtless remembers what a difficult performance a three-legged race is on school sports day. He has had to indulge in a four-legged race today with his left leg tied to the Labour Party and his right leg tied to the Conservative Party, and he has been finding it extremely difficult. He has provided an excellent illustration of the problem, dealt with by my noble friend the Leader of the House at Questions today, of reading out a pre-prepared speech when what had been said was something completely different. I said in my address to Amendment 18C that I felt that the way in which the Government had drafted this clause would allow large news organisations to create structures that were in no way subject to the Bill. My noble friend did not address that at all in his reply, because it had been pre-prepared and did not allow him to reply to the remarks that I had made. I particularly feel that the Government have not understood the way in which the world is moving on the internet, and have not allowed for the sort of structures that seem to be arising even now, let alone those that will come.

I hope that the Government will take advantage of the freedom that I believe that they have to think through the wording and ensure that they are giving themselves the powers that they wish. To come back to what my noble friend Lord Black of Brentwood said, we are trying to achieve a regulator here that will be participated in, agreed and effective. I am sure that another look at the questions that I have raised with Amendment 11A would consider whether introducing uncertainties in this way in the position of someone who registers is really the best way of getting people to sign up. Other than that, however, I am grateful for the answers that my noble friend has given. I beg leave to withdraw my amendment.

Amendment 11A, as an amendment to Commons Amendment 11, withdrawn.

Visas: Student Visa Policy

Lord Lucas Excerpts

Thursday 31st January 2013 Lords Chamber

[Lord MacGregor of Pulham Market]

My Lords, I thank the many distinguished noble Lords who have put their names down to speak in this debate. There are several, such as my noble friend Lord Norton of Louth, who for good reasons are unable to be here but would like to have participated. That is a sign of the concern that there still is on this matter. The time pressure put on us means that I will have to be succinct on the issues and there is much that I will have to leave out.

There are three basic points with which to start. I strongly support the Government’s overall immigration policy. I entirely agree with the steps take to deal with abuse and bogus applications in parts of the private sector, the education sector and English language schools. Today we are talking solely about universities. I welcome the helpful steps that the Government have taken to alleviate some of the concerns expressed not least by five Select Committees in both Houses, and in particular the decision to disaggregate the student numbers in the migration figures. That was a big step in the right direction but we need to go further.

The achievements of our universities are one of the major UK success stories. Many are recognised world leaders, comparable to the best anywhere, especially in the United States. Overall our university sector has an internationally high reputation and the demand for places from overseas is strong. Non-EU overseas students contribute over 10% of total university fee income. The contribution to that reputation from overseas undergraduates, postgraduates, research fellows and professors working and studying here is great. The benefits that our universities bring to local economies are substantial, not only in their spending on local goods and services but also in their contribution to key economic developments. The huge growth in the science and research parks in Cambridge is just one outstanding example. The universities are a major expert earner, accounting for £8 billion now and with an expected to increase to £17 billion by 2025 on recent trends. They are the fifth biggest positive contributor to the net balance of payments.

The vast majority of overseas students are not permanent immigrants. They are migrants. The universities have excellent systems for tracking what happens to them. Most eventually return to their own countries or elsewhere. A 2010 Home Office study showed that of the individuals who entered as students in 2004, only 3% had settled permanently by 2009. They do not claim benefits. It is a condition of their visa that they have no recourse to public funds. They are net contributors to the economy and not a drain on public funds. They are unlikely to require NHS care because of their age profile. They are totally unlike bogus applicants and many other immigrants.

There are countless examples of them returning to their own or other countries and becoming permanent ambassadors for the UK. They are our best ambassadors when they leave our shores. They find prominent positions in government, foreign services and defence, industry and commerce, education and elsewhere. This is so-called soft power. In short, these are absolutely not the sort of immigrants that the public and the media have in mind when they call for tougher controls on immigration. They are the opposite, real assets to us, and that needs constantly and regularly to be made clear in the context of policy decisions. In so far as there has been public concern about students, this was related to bogus ones, and I hope that that problem has now been dealt with.

Overall figures of new entrants from non-EU countries are only slightly down in 2012, by 0.4%. Most overseas students are postgraduates and their numbers are down by 1.9%. Not much, one might say, but I suspect that this is only the start of a trend. First, in what is a hugely competitive industry, as many in this House know, numbers in most of our major competitor countries—America, Australia, Canada and some EU countries, which are fast developing courses in the English language —are up.

Secondly, some universities have told me that they found that last September the number of postgraduate applicants who had even paid deposits and then declined to come had increased. Thirdly, the perceptions that the UK was imposing tough new restrictions, being less welcome to new applicants and spouses, and even closing for business, have grown considerably since these figures were compiled. This goes particularly for the Indian subcontinent, where numbers are already substantially down and compensated for only by a rise in China.

Unless action is taken, future years will show a considerable decline in entrants. On the Indian subcontinent and, I am told, in some African countries, this perception has been especially evident as a result of the London Metropolitan issue. I do not have time to go into that in detail. Suffice it to say that the hostile publicity in India after that matter focused on the students who either had to or could not find other places—and it was huge. That, combined with individual stories about visa difficulties with the UK Border Agency, has been immensely damaging.

Fourthly—and this is difficult to explain in a few words, certainly to people outside this House—the claims sometimes made by Ministers that there are no limits on non-EU applications are simply not believed. This is due partly to the perceptions that I have already described, partly to difficulties with the UK Border Agency—of which, more in a moment—but perhaps most of all to the following point. In order to meet the Government’s target of reducing net migration to tens of thousands by 2015—and we are still a long way off that—and since students are the largest category of migrant, a further reduction in student numbers seems inevitable. The Migration Advisory Committee’s report states that a reduction in non-EU student numbers of 87,600 in the period 2012 to 2015 would be required to meet that target. The Institute for Public Policy Research has an estimate of 50,000 fewer non-EU students, translating to a loss to the UK of £2 billion to £3 billion per annum. These figures suggesting limits are becoming widely known and are fed by the perception of the way in which the UK Border Agency is applying its controls and rules to potential and already-in-place students from non-EU countries.

So what is to be done? I will be as brief as possible to enable as many speakers as possible to have a little bit more than the two minutes allowed. I have two points to put to my noble friend. First, it is clear that the UK Border Agency is overstretched, overbureaucratic and underresourced. Universities are highly responsible and want to clamp down on any bogus students and those who break the rules. I have talked to various vice-chancellors, seen the Universities UK submission and read the excellent article in the Daily Telegraph of 24 January by Sue Cameron, which accurately sums up the impressions that I have gained. The stories of unnecessary difficulties are legion. The UK Border Agency seems to be making students feel as unwelcome as it can. The amount of time, energy and costs that universities are having to use up is high, and all this is now being used by competitors in other countries to imply that the UK is closed for business.

I have a list of complaints and suggested improvements from Universities UK which I do not have time to repeat. Today, I shall mention just one or two of them. It makes the following points: that the UK Border Agency requirements of tier 4 sponsors have changed 16 times since 2009, making it incredibly difficult for sponsors to keep track of requirements; that changes have been made to visa requirements in the middle of the universities’ admission cycle, which has led to individual institutions having to review by hand thousands of offers already made to prospective students; that the UK Border Agency helpline is often unable to answer questions about changes to the rules; and—this is a particularly important point—that universities frequently tell Universities UK that they have received no feedback from the UK Border Agency following a tier 4 audit visit, either to inform them that they are compliant or to point out shortcomings or potential weaknesses. Many universities are making this point to Universities UK, and I hope that the Government will take it up.

Secondly, and most important of all in the light of all that I have said, I strongly support the recommendations of the five Lords and Commons Select Committees, including the Public Accounts Committee. It must be rare to have five committees from both Houses making the same points time and again. I am not sure that I can recall that ever happening before in my long period. It is important therefore that the Government take heed of what they have all said and remove international students from the net migration target. All five committees have powerfully argued the case. I quote from just one, the House of Commons Business, Innovation and Skills Committee, reporting in September 2012. It states:

“Whilst we understand that the UN definition of migration includes overseas students the Government is under no obligation to use that definition for the development of domestic policy”.

That is a fundamental point: it is perfectly reasonable to have the figures under the UN definition, but they should not be used for the development of domestic policy. The committee goes on:

“Removing overseas students from the Government’s migration targets would allow universities to compete on a level playing field with their international competitors”.

That is again an absolutely fundamental point. By changing the system, we would come into line with what happens in America, Australia and Canada, where they are making great appeals to overseas students. The report continues:

“It would also allow the Home Office to concentrate on economic migrants and their value to the United Kingdom”.

That is a point that I made earlier. The report goes on:

“We recommend that, for domestic policy purposes, overseas students should be recorded under a separate classification”—

we are moving, thank goodness, towards that—

“and”—

crucially—

“not be counted against the overall limit on net migration. That does not mean that we wish to hide the level of overseas students studying in the UK. The Government could make clear the distinction by publishing, alongside its net migration data, detailed information on the number of overseas students studying in the UK, their country of origin, the number who remain here after they have completed their studies and the number who remain in higher education”.

The committee then makes the following, terribly important point:

“Such an approach would make clear the difference between permanent immigration and study and crucially it would demonstrate clearly that the United Kingdom welcomes overseas students and values the contribution they make to our economy”.

I could not put it better myself. I stress again that such a change would bring our universities into line with the systems in our major competitor countries.

Yesterday, all five chairmen of the committees wrote to the Prime Minister on this point in view of his forthcoming visit to India, where the problem is most acute. I cannot recall an occasion on which the chairmen of five Commons and Lords committees have taken such action. I am sure that, on his visit, the Prime Minister will yet again powerfully and splendidly promote the cause of British exports. This change would be most timely and welcome in relation to one of Britain’s key export sectors.

At the Conservative Party conference in October 2011, the Prime Minister said:

“I want the best and brightest … scientists and students from around the world to get the red carpet treatment”.

I say amen to that. It is precisely what this change would do. My noble friend on the Front Bench has a deservedly high reputation in this House. I am sure that he will listen. I hope that, as a result of this debate, he will feel able to pursue both these points, on the UK Border Agency and on taking the migration statistics out of the target, with the relevant colleagues in government. If he can achieve progress on that front, it will be warmly welcomed by very many in this Chamber.

[Lord Lucas]

My Lords, may I point out that, on the mathematics of the speakers list that we have in front of us, we actually have three minutes each?

--- Later in debate ---

[Lord Lucas]

My Lords, we are one country. I hope that we all want some degree of immigration control and we all should want our universities to flourish and bring us wealth now and influence in the future. It is therefore extraordinary that we have ended up with two bits of our country working so diametrically against each other. Universities need the UKBA to be a partner in their marketing, to help them in the recruitment of students and to work with them. As we all know, we are seeing exactly the opposite. UKBA needs universities to help it in controlling immigration. As my noble friend Lord Phillips said, they are extremely unhelpful to the UKBA in doing so. They grouse and some of them really do not do what they should at all. The result has been a total breakdown in trust and in relationships. It meant that, when London Metropolitan University erred severely, the reaction of UKBA was completely irrational, except that there was no trust and no relationship on which to base a better reaction.

We need a fresh start. I know a lot of people are making an effort towards it, as I am—in a small way—along with the British Council and Imperial College. We had a very good meeting with the UKBA in December but things have now gone silent. I am sure my noble friend on the Front Bench knows what is happening. There is still lingering resentment and anger within the UKBA which is preventing these initiatives going forward. I very much hope that he will allow me a meeting with him and with the Minister to see if we can do something about that. Perhaps in many small ways we can build personal relationships by making small changes and experiments and by taking incentives. For universities like Imperial, that should be a gentle move towards something like a most trusted status. We need some way of removing the requirements of unnecessary immigration controls, just as they have been removed for independent schools. You do not find Imperial students wandering off to work as assistants in burger bars; they have far too much to do on their degrees.

There is a lot that can be done and I very much hope that my noble friend will help us do it.

Protection of Freedoms Bill

Lord Lucas Excerpts

Wednesday 15th February 2012 Lords Chamber

[The Earl of Erroll]

I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.

In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.

I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.

[Lord Lucas]

I quite agree that this is something we need to watch. We have similar problems in the health Bill where, for reasons I entirely approve of, activities that used to be done by state bodies may in future be done by private ones. We need to make sure that that does not mess up our objectives on freedom of information, which are, I believe, and certainly should be, towards greater access to information rather than less.

[Lord Collins of Highbury]

My Lords, I support my noble friend’s amendments, which would make common-sense improvements to the operation of the Freedom of Information Act. I will not repeat the arguments he has made so eloquently, but I would like to raise a few points.

These amendments strengthen the individual’s right to freely access public information and the presumption in favour of openness and accountability in public bodies. The democratisation of knowledge and communication through the internet is the most important revolution of our age. People simply do not accept bureaucratic barriers to information any more, and we must have legislation that is alive to responding to new realities. It is therefore essential that the processes for accessing information do not work against the principle that the burden should be on the body providing the information, not on the individual seeking it. This includes the cost of seeking such information and I urge the Government to think again if they are planning to increase charges.

The 40-day maximum cap on complying with freedom of information requests is both simple and workable. As my noble friend pointed out, it comes from the recommendations of the Information Commissioner, who said:

“In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days”.

The House has learnt first hand the frustration of delays that can be caused by decisions and successive appeals on the basis of public interest, which no doubt we shall return to when we resume consideration of the Health and Social Care Bill.

We must seize every opportunity to ensure that the process itself never becomes the reason why individuals are denied access to public information. We must also ensure that the principle of public accountability at the heart of the Freedom of Information Act established by the Labour Government is not diluted by changes in the nature of delivery of public services, as noble Lords have pointed out. As my noble friend has said, the public have a right to access information about how their money is spent and I hope the Minister will seize this opportunity to restore the levels of public sector transparency enjoyed before the Localism Bill was enacted.

--- Later in debate ---

I look forward to hearing from the Minister on the questions that I have raised about the complexities that surround the exemptions for universities, and whether they are met by the guidance from the Information Commissioner.

[Lord Lucas]

My Lords, before I speak to my amendment in this group, may I first say that I hope my noble friend will treat the points raised by the noble Lord, Lord Sutherland of Houndwood, and my noble friend Lady Brinton with seriousness? It is clear that in an internationally competitive environment it is very important that people have confidence in the proper protection of research databases.

I disagree with both amendments. The amendment moved by the noble Lord, Lord Sutherland, would blow a hole below the waterline of this clause and would certainly destroy all my attempts to get other information out of universities. The amendment spoken to by the noble Baroness, Lady Brinton, misses important points on the other side. It is terribly important that data become available once results have been published. Many of these programmes go on for a long time. Because we intend to use the data in a whole series of publications over the next 20 years, we will never let them go. However, it must be possible for people outside a research group to criticise the results as they are being produced or false conclusions will be dropped into science and never properly got at. To pick one example, given by the noble Lord, Lord Sutherland, the inspiration of Crick and Watson had to be combined with the meticulous work of Franklin. Without that combination and the data being made public, the discovery would not have been made.

[Lord Sutherland of Houndwood]

On a point of order, it was information shared between research colleagues in two different institutions. In an atmosphere that is perhaps not quite as common today, it was willingly shared.

[Lord Lucas]

I understand and I remember from reading biographies that that was the case. None the less, the data were shared. To take an example from my time on the Front Bench as spokesman for agriculture during the problem of BSE, the Ministry of Agriculture, Fisheries and Food had been meticulously researching what was happening with this plague and had years of data. We had good people internally who were researching it. We did not know what was happening and we kept the data to ourselves. Three weeks after we released the data, we were told what was happening, which was transmission by food. That was right. Making data public, beyond a research group, is a very important thing to do at the right time. I should not like to see something in legislation that prevents that and allows people to hog data that should be public so that they can be properly criticised and understood.

My amendment is not on the same subject; it concerns technical bits of drafting in the same clause. I very much welcome the determination to provide greater access to data sets. It is something that I have struggled with, particularly with universities. All the universities that send me data stick copyright notices on them, which I studiously ignore. They have yet to sue me for it, probably because they have better things to do. Alternatively, I proposed as a remedy to one university that, if it insisted on its copyright notice, I would automatically generate an FOI exemption for every one of my users who wanted to access the data. The university thought that a number of 10,000 users a day was getting a bit large.

It is important that we understand that, when information is released under FOI, it can be passed on and made public; and that the generating institution does not retain some sort of control over it merely on a whim. I can understand why that might be the case if the material comprises something done under a publication scheme and is paid for, but otherwise it is very important that the information can be circulated whether in news media or in publications such as mine —the Good Schools Guide—or in many other applications.

I do not see why the proposals in the Bill do not go further and why they are restricted to data sets. It is common for all kinds of information released under FOI to be accompanied by a copyright. However, it is often obvious from the information that it has no conceivable commercial value to the public authority. A requester may have obtained a policy that he or she wants to publish on a website which demonstrates alleged shortcomings in an institution; for example, it may show that a decision has been taken without proper consideration of the consequences. The requester may want to write to Members of this House about the information that has been disclosed. Why should they be prevented from doing so by a copyright notice? It seems to me that the principles we are setting out in this clause should go further.

My second concern is about the definition of “data set”, which I believe is unjustifiably narrow. The Cabinet Office carried out an open data consultation which sets out admirably ambitious objectives for the greater use of data sets. Many collections of data currently gathered by public bodies which may be essential to revealing the inner workings of government do not seem to fall within the legal definition of a data set as set out in Clause 102(2). Any electronic collection of data which is the result of analysis or interpretation cannot be a data set because of new subsection (5)(b)(i) of the definition. The obligation to release it in reusable form will not apply to it, nor will the requirements to release it subject to the minimal restrictions embodied in a specific licence. The Information Commissioner will not be able to require that this collection of data must be published under an authority’s publication scheme. It seems that only raw data untouched by human hand are to be affected by this clause. That may suit people like me who spend their day with programs interpreting data, but most people want access to something which has been prepared for human consumption and has been set out in a way that members of a local authority are intended to understand rather than the geeks in their data department. I do not understand why the Government are seeking to exclude from this clause data which have been made human readable, as it were.

Paragraph (c) of the definition states that a data set remains one only so long as all or most of the information in it,

“remains presented in a way that (except for the purpose of forming part of the collection) has not been organised, adapted or otherwise materially altered since it was obtained”.

I am puzzled by that definition. A publication of data from a database may start off in the form of a spreadsheet consisting of three columns but is reorganised to consist of seven columns. Has enough been done to prevent the data set being published? How is anyone to know that? How is anyone to interpret that? How is any user to know that something is publishable? It seems to me that we are setting ourselves up for endless arguments. I am particularly concerned that authorities may find that, by reorganising data, they are able to conceal it from publication. It does not seem to me that that is the Government’s intention. I very much hope that they will explain to me their understanding of how this subsection may not be used in that way.

Protection of Freedoms Bill

Lord Lucas Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Wills]

My Lords, I support my noble friend Lady Hayter on this matter. I should declare an interest as someone who suffers fairly regularly from the kind of selfish behaviour that she so compellingly outlined. She set out the arguments so well that I do not intend to rehearse them again. I only ask the Minister to reflect on the sentiment of the House that, in dealing with the very real problems of clamping by private operators that it is widely accepted need to be dealt with, the Government do not create another set of problems. The risks that my noble friend outlined are real. I hope that the Minister in his reply can give the House some reassurance that the Government are going to tackle them.

[Lord Lucas]

My Lords, I am thoroughly in favour of Amendment 42, or at least the intention behind it. It is quite clear that the Bill as it stands will allow a continuation of current abuses in different forms. All you need is a couple of posts with a chain coiled next to one of them and you have a barrier that you can put whenever you want. Anyone caught within it might have to pay a large fine to be released. We will have the same people indulging in very much the same practices as at the moment but they will use a barrier rather than a clamp. Clearly this section is designed to exempt local authority car parks and others with a raised barrier and a ticket on entry. I entirely agree with that. However, it must be reworded, and Amendment 42 seems a pretty good way of doing it. It would be desirable to improve the arrangements in the Bill for appealing against unjustified tickets. I have no objection to the way in which the noble Baroness has set about doing it although I suspect she has taken on a hopeless cause when it comes to allowing more people to clamp. The Daily Mail will use that one, I suspect.

[Earl Attlee]

My Lords, we have already debated these issues at some length in Committee and I am grateful to noble Lords for taking time to meet with me and my officials since then to discuss these matters further. As the noble Baroness, Lady Hayter, has so expertly and temptingly set out, Amendment 42 seeks to allow the use of fixed barriers in certain circumstances and to specify certain conditions that must be met.

We consider the amendment to be unnecessary as Clause 54(3) already requires that there is express or implied consent by the driver of the vehicle to restricting its movement by parking where there is a fixed barrier. In practice this means that the existence of the barrier must have been apparent to the driver, either visibly or through clear signage, when they parked. Secondly, in order to establish a contract as a basis for payment, the terms for parking would have to be clearly displayed. Therefore, if the landholder demanded a fee for release of the vehicle without such a basis, he would be committing an offence under Clause 54(1). In answer to my noble friend Lord Lucas, I am convinced that we have drafted these provisions correctly.

Amendment 43 seeks to create a new power for the Secretary of State to grant lawful authority to clamp and tow vehicles to those who request it, with the expectation that applications would not be refused if made by local authorities, residents’ associations and community groups. Again, we consider the amendment to be unnecessary because there are existing powers for local authorities to take a controlling interest in the management of parking on private land with the agreement with the landholder.

Section 33(4)(b) of the Road Traffic Regulation Act 1984 states:

“A local authority may, on such terms as they think fit … arrange with any person for him to provide such a parking place on any land of which he is the owner or in which he has an interest”.

The phrase,

“provide such a parking place”

refers to a Section 32 parking place, which is the general power for local authorities to provide off-street parking places. As a result, the local authority could make provisions as to the conditions for the use of the parking places and manage and enforce those conditions under the Traffic Management Act 2004. This would enable local authorities to use their lawful authority to clamp or tow those vehicles that have contravened the terms and conditions for parking on that land.

The amendment would also introduce regulation of wheel clampers overseen by the Secretary of State who will also presumably be responsible for enforcement, rather than the Security Industry Authority or another body. The requirements set out in Amendment 43 could lead to a patchwork system of regulation in that each application made would have to set out how they meet the requirements, including in respect of an appeals process. However, the amendment does not provide for national standards which any local scheme must adhere to, so the amendment could lead to a system where wheel clamping schemes are different throughout the country. I am sure that is not the noble Baroness’s intention.

We have seen that following seven years of licensing by the Security Industry Authority, rogue wheel clampers continue to carry out their unscrupulous practices and we do not consider that further regulation of the industry will deter them, no matter how much the noble Baroness, Lady Hayter, deplores their activity. An outright ban on wheel clamping without lawful authority is the only way to deal with rogue wheel clampers. Wheel clamping and the towing away of vehicles by private individuals or businesses without lawful authority in order to force payment of a charge are unacceptable and should be prohibited. As well as causing motorists significant distress and anxiety, the clampers in effect hold the vehicle to ransom—or at least threaten to do so as a deterrent. No one can justify or defend the exorbitant release fees and intimidatory tactics employed.

Throughout our debates, many noble Lords have strongly made the point that clamping is a particularly effective deterrent to inconsiderate and unauthorised parking on private land. It may be, but is it also disproportionate. Supposing I was attempting to deter motorists from speeding: if I proposed that the police have the power to clamp an errant motorist’s car for a couple of hours without recourse to an independent tribunal, I expect your Lordships would have something to say.

There can be situations where, in the circumstances, the motorist who is clamped has acted reasonably. What about a midwife who is seeing a patient in a large block of flats and reasonably believes that permission to park has been granted? How can it be right to clamp his or her vehicle in such circumstances? One only has to ask what the knock-on effect could be. What about police operations? I spoke to a pal of mine who undertakes covert police duties, dealing with very serious matters. He said in an e-mail:

“I can speak from first-hand experience on this. On several occasions this happened to me whilst on duty on covert operations. On every occasion I had to park my police vehicle quickly and deploy on foot from the vehicle. The vehicle was always left in open parking spaces on private land and subsequently clamped. Whilst I cannot quote the figures, I know this happens on many occasions in similar circumstances”.

The fact is that a clamping company operative, no matter how well meaning, cannot possibly know whether what he is doing is reasonable. Therefore private clamping on private land is fundamentally flawed.

Turning to Amendments 44, 45—-

[Lord Lucas]

My Lords, why would it be any different for the policeman if a barrier had been placed across his car? He still would not have been able to use it. Why is that acceptable and a clamp not?

[Earl Attlee]

The noble Lord makes a very good point. The policeman would have to take that risk. However, he would be aware that he was taking the operational risk that his vehicle might be clamped.

I turn to the other amendments. As the noble Baroness, Lady Hayter, has explained, these amendments seek to provide an alternative dispute resolution mechanism. The Government would be required to prescribe and enforce the system, which would need to be funded by the industry. It is a bit odd that in this group of amendments the noble Baroness proposes retaining clamping without any effective means of appeal while in other amendments she is insisting on a system of appeal.

As indicated in previous debates, the Government are committed to providing an independent appeals service, which will cover all tickets issued on private land by members of an accredited trade association. In practice, this body will cover all ticketing by members of the British Parking Association’s approved operator scheme, who are the major private parking providers in the sector with accredited access to the DVLA keeper data, and will therefore be able to pursue vehicle keepers for unpaid parking charges after the measures in Schedule 4 come into force. However, we have made absolutely clear that we will not commence the keeper liability provisions in Schedule 4 until this independent appeals body is in place.

The amendments tabled in the name of the noble Baroness, Lady Hayter, propose much broader regulation covering all parking on private land which, we believe, would impose a not inconsiderable burden on smaller landowners, including those who wish to manage perhaps only a handful of parking spaces, or even one.

I fear that I am not in full agreement with the noble Baroness, Lady Hayter, regarding Scotland, where wheel-clamping has been banned since 1992. We have seen no convincing evidence that levels of rogue ticketing are a particular problem. However, we are not being complacent; we have given these amendments very careful consideration and, in this respect, I am particularly grateful to noble Lords who have taken the time to meet me to discuss the Government’s proposals. I have also had very helpful and informative meetings with the British Parking Association, Citizens Advice and Consumer Focus.

Some noble Lords raised the issue of Citizens Advice Scotland dealing with more than 1,500 parking inquiries, which represents a big increase on previous years. The figures need to be reviewed in the context of the number of parking tickets issued each year; I do not have the figures for Scotland to hand but, in England and Wales, local authorities issued over 4.2 million penalty charge notices for on-road contraventions alone in 2009-10.

Following discussions, we have agreed that part of our commitment to monitoring the impact of the provisions will be to continue to liaise closely with consumer protection groups to ensure that if rogue ticketing activity does occur such groups can feed back to us. If it becomes a significant problem, we will consider further measures, including wider regulation, if it proves necessary in the light of experience. I hope that that meets the needs of the noble Lord, Lord Wills.

As I have said, we have already established a new system for parking management companies—

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, like the noble Baroness, Lady Brinton, I have also been involved with this committee, which has been looking in very great deal at this issue. As others have said, with the marvellous help of Laura Richards and Harry Fletcher, who have done a tremendous amount of work, we have listened to the most appalling stories. Again, as has been said, it is not just the individual whose life is ruined; it is often whole families who have to rush around the country trying to escape the persecution. As we also know, it is not just a question of trying to escape; there are murders and other terrible consequences. I, too, congratulate the noble Baroness, Lady Royall, on tabling the amendment. It is a good and very worth-while attempt not only to replicate the Scottish legislation—which, as we have all heard, has made good progress, and lessons are being learnt from it—but to make some additions, which we have worked on in our committee. Very sadly, it is probably not the right time to do so. We have a clash because the report that we have all been working on is published tomorrow, and it is very comprehensive. This makes, in my view, a strong case for a far more comprehensive piece of legislation.

That said, I commend the noble Baroness, Lady Royall, on later Amendments 49B and 49C in this group. They are an attempt, although I tend to agree probably not a practical one, to come to the right conclusion. We have, however, been told that Third Reading is not until March, so there might be some time to work on this report. If that is the case, we should gratefully look at that. Whether or not we will be able to accept it in its final stage, it would be an example of an updated piece of legislation that might in due course need further improvement but might be a step in the right direction.

I will mention cyberstalking briefly because it is a major and worrying area that needs dealing with. The perpetrator can not only continue to hound and haunt the victim in appalling ways but reinvent himself, pretend that he is the victim and spread all sorts of rumours. It is a very serious situation that we have ignored for far too long. One is almost surprised at how little attention has been paid to it. We should think back and not forget that domestic violence was regarded as something that was within the family and that the police should not get involved. How ridiculous that sounds in today's world.

Again, I congratulate the noble Baroness, Lady Royall, on what she is doing. I hope that we can make progress between now and Third Reading in the way I suggested, and then think again. I very much support what is being done.

[Lord Lucas]

My Lords, I very much look forward to reading the report tomorrow. I support the direction that the noble Baronesses have taken but I feel that Amendment 49A raises too many questions, particularly around the boundary of what is and is not acceptable conduct. For example, there is no requirement on A to behave reasonably, only on B. In subsection (5) of the proposed new clause we are getting close to the continental form of law where something is permitted only if it is allowed in legislation, whereas in the English form of law something is permitted if it is not forbidden in legislation. That requires careful consideration. I hope that the report of the noble Baroness will be the start of that process, and that my noble friend will be very supportive in his reply.

[Lord Henley]

My Lords, perhaps the House will welcome my intervention at this stage. I echo the words of the noble Baroness, Lady Howe, in saying that, surprisingly, I, too, commend the noble Baroness, Lady Royall, on tabling the amendments in this group. However, I have some doubts about their practicality and timing.

My first doubt is about their practicality. There are three amendments in the group. I am not sure in which order the noble Baroness would wish to see them on the statute book, or whether she wants to see them all on the statute book at the same time. Amendment 49A sets out in some detail what she proposes to do, although subsection (8) of the proposed new clause still gives the Secretary of State power by regulation to add further forms of conduct to subsection (6). The second amendment is a somewhat briefer attempt to do the same thing, which gives greater power to the Secretary of State to govern by regulation. The third, Amendment 49C, seems to imply that the Secretary of State can do what she likes, when she likes, merely by regulation. I am not sure that that is the right way to go about legislating in this field. I hope that I will cover these points in greater detail in my brief remarks.

I appreciate also the extreme importance of this matter. I make it quite clear to the noble Baroness and to the House that the Government take this very seriously indeed. We understand what my noble friend Lady Brinton called the fear and trauma that it can cause victims, many of whom are women living in fear of physical violence as well as mental anguish. We accept that more needs to be done—I make that quite clear—to protect victims of stalking and to stamp out such behaviour. That is why the Government took the initiative as long ago as last November in launching their consultation, which sought views on how we could more effectively protect victims of stalking—including, if necessary, through strengthening civil and criminal law, and police powers.

Protection of Freedoms Bill

Lord Lucas Excerpts

Tuesday 31st January 2012 Lords Chamber

[Baroness Hamwee]

My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.

Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.

The UN Committee on the Rights of the Child has made it clear that:

“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.

Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.

I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.

The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,

“it is they who should in the first instance be informed and consulted about the use of their personal data”.

[Lord Lucas]

My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.

[Lord Rosser]

My Lords, we have Amendment 24 in this group. The purpose of the amendment is to effectively remove from a child of primary school age the application of the provisions that would enable a child to override a decision by their parent or parents that their child’s biometric information should be processed. However, I fear that the wording of the amendment could be interpreted as also excluding children above 12 years of age from the provisions in the Bill on this issue, when that is not in fact the intention. Our view is that no child should be able to overrule their parents’ decision on this issue in the way envisaged in the Bill; indeed, we believe that the process should be agreed, or otherwise, by the parent on the basis of having to opt out rather than opt in, as the Government propose.

However, the Government have resisted changing the Bill other than to say that the consent of only one parent is required, provided the second parent is not raising an objection. Hence, our Amendment 24 seeks to address the issue of overriding a parent’s consent in relation to children of primary school age. The Government have argued that a child of primary school age should be able to make this decision. However, in fact, the decision that the child can make is restricted in a way that the Government have not yet explained. If the Government consider that a child of primary school age, from five to 11, is fully able to understand the issues involved and make a decision, which goes against the expressed wishes of their parent or parents that their child's biometric information should be processed, then why is it that if the parent, or one of the parents, declines to agree that their child's biometric information should be processed, the child should not also be given the opportunity to override that decision by saying that they do wish their biometric information to be processed? Indeed, in the light of the Government's amendment relating to parental consent, one parent could agree to their child's biometric information being processed, the other could disagree, and then irrespective of the fact that the child might wish to have their biometric information processed, their view would count for nothing, even though within the family two were in favour—that is, the child and one parent—and only one was against—that is, one parent.

What is the argument in favour of that situation when the Government are saying that a child should be able to overrule the wishes of their parents if the child says they do not want their biometric information to be processed? There may be reasons why a child would wish to agree to their biometric information being processed in a situation where at least one parent had said no. It might be that all or nearly all the other children in the class had agreed to have their biometric information processed, and the child might not wish to be different, or be treated differently, and indeed this might be a cause of concern to the child. Yet under the Bill, while a child of five to 11 years of age could stop their biometric information being processed, they could not insist on it being processed.

In the absence of a convincing explanation for this apparent anomaly—perhaps the Minister will provide one when he responds—there must be a suspicion that these arrangements are being introduced, under the guise of a very selective definition of children’s rights, when what they are really designed to do is implement an unsaid government policy of effectively making impossible the continued processing of a child's biometric information.

The Minister asked in Committee if we were proposing that a child should be dragged kicking and screaming to have their biometric information processed if they disagreed when their parents had given their approval. I will come back to that point. The trouble with the Government's proposal is that it provides a child, including a young child of primary school age, with the opportunity to very publicly, in their school, override the wishes of their parents, provided of course that they do not want their biometric information processed, but not if they do, contrary to the wishes of their parents. Apart from the prospect of some parents feeling somewhat humiliated, it is hardly giving a message to young children that they should respect the word and wishes of their parents. Indeed, it is doing the exact opposite. If it is all right to overrule parents’ wishes in this very public way on this issue, why should a young child not get the message that it must be all right to do it over other issues?

No school with any sense would force a child to have their biometric information processed in a situation where just parental approval or non-objection was required, but that child nevertheless still refused. A more sensible approach would be for the school to go back to the parents and invite them to discuss the issue with their child. If the matter could not then be resolved by either the child no longer refusing or, alternatively, the parents deciding to withdraw their consent, the school would do best not to pursue the issue and make a martyr, but to tell the child that if they so wished they could change their mind at any time in future. At least that approach would not leave the school having to give the child an open invitation to overrule the wishes of their parents, as is the case under the Government's proposals.

As I said at the beginning, our amendment does not change the Bill in the way we think it should be changed on this issue but, in view of the Government's stance, it does at least provide that the provisions enabling a child very publicly to overrule their parents—but, strangely only if the child does not want their biometric information processed, and not if they do—does not apply to children of primary school age.

--- Later in debate ---

Moved by

[Lord Lucas]

31: Clause 33, page 24, line 36, leave out “evidence in any such” and insert “criminal or civil”

[Lord Lucas]

This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:

“The surveillance camera code is admissible in evidence in any such proceedings”.

Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.

I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.

[Lord Henley]

My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.

I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.

My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:

“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.

I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.

With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.

[Lord Lucas]

My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.

Amendment 31 withdrawn.

Protection of Freedoms Bill

Lord Lucas Excerpts

Thursday 12th January 2012 Grand Committee

[Baroness O'Neill of Bengarve]

My Lords, I want to speak to Amendments 147A, 147B, 148A, 148C and 148D. I will also comment, but much more briefly, on the more comprehensive Amendment 151, in the names of the noble Baronesses, Lady Brinton, Lady Warwick and Lady Benjamin, which I support, and I will comment very briefly on one of the amendments in the name of the noble Lord, Lord Lucas. Before doing so, I would like very much to thank the Minister and the Bill team for their exemplary courtesy and helpfulness in explicating their thinking on Clause 100—not, I think, the simplest clause of the Bill. If we have not reached agreement, it is not for lack of effort on their part.

Secondly, I would like to make it entirely clear that I am in favour of making scientific data more open. Science needs openness for its own purposes; it needs to have open data so that it is possible for others to check and challenge, and openness allows data to be put to unanticipated uses. Therefore, I am in much sympathy with the overall purpose of this part of the Bill. Of course, it used to be feasible—and it was standard practice—to publish data within articles in scientific journals. That is no longer feasible because of the size and complexity of many scientific data sets, so openness now has to be sought in other ways.

However, I believe that the Bill is based on too confident a view of the effectiveness and adequacy of the system of exemptions established in the Freedom of Information Act 2000 and of their capacity to avoid undesirable and unintended effects—particularly in this area, which is essentially that of scientific databases. Clause 100 proposes a seemingly minor, but in fact very substantial, change in the application of the freedom of information requirements to the release of data sets by public authorities. I will not at this stage say anything further about the use of the term “public authority”, as I think that we all understand that this means a publicly funded authority, which may, however, be a research institution or university that also has charitable status.

On the surface, Clause 100 simply requires the release of data sets in reusable electronic form, but I believe that in practice its demands will create a number of risks and problems. Let me therefore begin with Amendment 147A. The present drafting of the clause is, I believe, ambiguous, in that it requires data to be released upon request if the data are, or form part of, a data set held by a public authority. Amendment 147A seeks to restrict that requirement to “completed” parts of a data set held by a public authority. While it is reasonable to require that completed parts of still incomplete data sets be disclosed if requested—for example, the data pertaining to a past year in a continuously updated series—there is no benefit to anybody in disclosing an incomplete part of a data set. Indeed, requiring disclosure of incomplete parts of data sets could be misleading as well as damaging to research projects and to those provided with the incomplete, and perhaps misleading, data.

The clause would currently require disclosure of data sets while data were still being entered and had not yet been checked. At that stage, the incomplete part of the data set might be misleading. To take the example of a multi-centre clinical trial, requests for disclosure of incomplete parts of the data set could lead to the release of data that related only to a distinctive subset of patients whose data happened to become available at an earlier stage than those of other subsets of patients whose results might differ—that is, after all, the reason why the structure of clinical trials is quite elaborate. Such misleading releases might, I fear, falsely raise or dash the hopes of patients suffering from a serious condition, who would read the incomplete data set released as indicating that they had grounds for hope or despair.

I think that this issue arises because the drafting actually conflates two very different types of incompleteness in data sets. A data set may be incomplete because it relates to an ongoing project. In this case, completed parts of that data set relating, for example, to completed periods or phases in the project may indeed be available and could be released upon request.

In the second case, a data set or parts of a data set may be incomplete because the data are not yet fully available for entry, have not yet been entered or have not yet been checked. It could be highly misleading to require disclosure in the second case. Amendment 147A seeks to limit such requirements to disclose to the completed parts of data sets, where the danger of misleading is less.

Secondly, Amendment 147B requires that access is provided on request to data sets in reusable electronic form. Again, I stress that this is in principle an admirable thought. Where a data set is, for example, a relatively simple spreadsheet, this requirement would create no more difficulty for research databases than it does for government data sets. However, some scientific data sets are of orders of magnitude larger and do not use standard software; even if it is feasible, it may be extremely costly to render them usable by others or, indeed, reusable even by others with technical skills. We have to remember that those of whom data are requested will not know the skills of those who request them. In such cases it may be necessary to provide metadata or to process data further in order to make access to them more feasible even for competent others. It is more usual to make research data available by archiving data sets or by setting out a publication or so called data sharing scheme that will provide access for others and also secure the crucial benefits of professional data curation and data security.

Amendment 148B will permit holders of research data to undertake to provide those data using these normal and reliable routes. At present, the Freedom of Information Act grants an exemption once data sets have already been placed in the public domain in this way, such as in a data archive or through a data sharing scheme. This amendment seeks to postpone access where such archiving is not merely foreseen but is something that data holders have undertaken to provide. In effect, it would create a temporary exemption for the data concerned. The Minister might see this as an opening for procrastination. However, if he is sympathetic to the realities of the problem, he might perhaps wish to consider at least a version of the amendment that offers a limited time for this exemption—for example, six months after the completion of the relevant research project or phase of the research project. It is a question of trading off quality for instant gratification, I suppose.

Amendment 148A concerns the charging of fees. It seeks to address the real financial implications of seeking to make large and complex data sets available for reuse. The Bill provides for the charging of fees but does not allow public authorities to take account of the real costs of making data available to others. These costs may include not only additional checking and making metadata available but above all—and this is the main concern in the scientific community—the diversion of highly skilled and specialised time from research projects to the satisfaction of freedom of information requests. I have drafted the amendment to make it clear that it is the real costs of disclosure that matter. As noble Lords will have noted from the very helpful briefing provided for this section of the Bill by Universities UK, these costs can be very significant. It would not be reasonable, in my view, to require research projects or universities to bear these costs, which they cannot in principle have known about when seeking and obtaining the funding to do the research.

The last two amendments to which I shall speak very briefly are Amendments 148C and 148E, which are relatively uncontroversial. At present, the Bill restricts the operations that may be performed on data sets prior to required disclosure to calculation. That is just unrealistic. Those who compile data sets also need to check the data, which will be done using a variety of methods, and take steps to ensure data integrity and security, particularly at the point at which data are to be disclosed on request. Amendment 148C provides for this; Amendment 148E is consequential on Amendment 148C.

On Amendment 148, tabled by the noble Lord, Lord Lucas, from what I have already said and what the UUK briefing—now supported by the Academy of Medical Sciences, the Wellcome Trust and other scientific and medical bodies—has documented, the complexity of scientific databases rules out a solution along these lines. It would be very nice if it were feasible, but I believe that it is not feasible.

Amendment 151, tabled by the noble Baronesses, Lady Brinton, Lady Benjamin and Lady Warwick, is a substantial amendment. It takes the more radical step of seeking to define an additional exemption to freedom of information requirements and in the process achieves a number of the specific objectives that I have tried to achieve by more economical means in the amendments that I have tabled. However, their approach has one great advantage, which I believe—although I have racked my brains on this one—cannot be achieved by the more modest approach that I have taken. It recognises the risks to UK science and business and to the personal safety of researchers in certain fields—for example, involving work with animals—and to research subjects that will be created by Clause 100 if it is not amended. We are simply being naive if we imagine that we can rely on all those who request data respecting the intellectual property of those whose efforts produce data sets. We no longer live in a world where that is true, and we can all imagine many scenarios in which data disclosure is sought on behalf of others who work in jurisdictions where intellectual property is widely disrespected, with the aim of getting a free ride on the basis of work done by others without the payment of any fees. In those jurisdictions, legal remedies are not effective. I look forward to hearing a great deal more about Amendment 151. I beg to move.

[Lord Lucas]

My Lords, I have a clutch of amendments in this group. I will not at this moment comment on those proposed by the noble Baroness, Lady O’Neill, although I am looking forward to listening to others’ contributions on that subject. But it is very important that when a group of scientists ask us as a Government or community to take action based on results that they have published, the data underlying those results must be open to scrutiny. I understand that that has a difficult interaction with the questions raised by the noble Baroness, but I look forward to others’ contribution on how to solve that.

The first amendment that I have in the group is Amendment 148. I should declare that I am an extensive user of freedom of information legislation, particularly as regards universities, which I have found unutterably tiresome and difficult to deal with. One of their more tiresome habits is to refuse to provide information in anything other than PDF format. They get it in Excel, or whatever form, and translate it into PDF to provide it to me, merely to cause me extra work. I have to buy a program to suck it out of the PDF again. PDF is not a transmissible format, as it were, and they are merely trying to make life difficult by putting it in that format. So I would like to be sure that when data are provided they are provided in a properly reusable format. I have never come across a data set that cannot be reduced to tabbed, delimited text. Maybe that happens in a collection of tables, but data are essentially a simple thing. Although the data may be held in an immensely complex form in the program that the scientists are using, in any program that I have come across it should be easy—if only for the purposes of sharing with other people—to drop out at least the base data into relatively simple form.

--- Later in debate ---

That is a very brief explanation of our concerns about these amendments. However, as I have made clear, I appreciate that there are some very real concerns in this area and it is very important—and this is what this House does well—that we get this right. For that reason it is very important I offer a further meeting to the noble Baroness and others who wish to come along so we can make sure we have got this right and we have met the concerns of Universities UK. I can say to the noble Baroness, Lady Warwick, that I have received the briefing from Universities UK but sadly only just before I came into this room so I have not studied it in any great depth. I will do so. We accept it is important that the concerns of the academic community are addressed and met and I hope, having listened to that, the noble Baroness would agree that a further meeting between now and Report stage might be useful, when we can sort these matters out to the best satisfaction of all concerned.

[Lord Lucas]

My Lords, I am very grateful for my noble friend’s replies to my amendments. If I might take up his offer of a meeting I think that would sensibly shorten the proceedings of this Committee. Would that be all? In that case I shall sit down.

--- Later in debate ---

Moved by

[Lord Lucas]

151H: After Clause 101, insert the following new Clause—
“Means by which communication to be made
In section 11 of the Freedom of Information Act 2000 (means by which communication to be made), after subsection (1)(c) insert—“(d) the provision to the applicant of a copy of an existing record containing the information,”.”

[Lord Lucas]

This amendment would give people seeking information the right to see that information in its original context. I beg to move.

[Lord Henley]

I thank my noble friend for speaking to his amendment with such brevity that he caught me unaware. He has set out how he seeks to introduce a provision into the Freedom of Information Act to the effect that, so far as is practical, and where they request it, applicants must be supplied with a copy of the original record containing the information in which they are interested.

I accept that disclosing copies of documents is often the easiest way of responding to freedom of information requests and that that practice is widely followed. In some instances, it may be reasonably practical in terms of cost to supply copies of the existing record, but there may be legitimate reasons why it is not proportionate to do so when the benefit to be gained is balanced by the burdens imposed. For example, the most reasonable interpretation of the amendment would mean that the additional information need not be released if it has not been requested, but if it is, the public authority would be obliged to provide pages of blacked-out text in order to provide the full existing record. I do not think that that would be the most appropriate way forward. Leaving the position that public authorities can provide copies of the original where necessary but they are not obliged to do so is possibly the more appropriate way to deal with this matter, and I hope my noble friend will feel able to withdraw his amendment.

[Lord Lucas]

I am grateful for that reply. I shall think carefully about what the Minister said, and if I need to ask further questions I shall do so when I meet his officials. I beg leave to withdraw the amendment.

Amendment 151H withdrawn.