Police and Crime Commissioners

Lord Paddick Excerpts

Thursday 1st March 2018 Lords Chamber

[Baroness Williams of Trafford]

I know that the PCC has been in correspondence with other noble Lords. I am reluctant to talk about individual correspondence at the Dispatch Box. I am sure the noble Lord will understand why that is, but I think he will also understand why this Question has come up again today.

[Lord Paddick (LD)]

My Lords, I would like to broaden this out. Can the Minister explain how party-politically aligned police and crime commissioners can effectively hold chief constables to account? We have a situation at the moment with Labour and independent police and crime commissioners blaming central government real-terms cuts to police budgets for reductions in policing services, while Conservative police and crime commissioners toe the Conservative Party line, claiming that budgets are being maintained. Who is really to blame for drastic cuts in police numbers? Is it inefficient chief constables or is it the Government?

[Baroness Williams of Trafford]

My Lords, there certainly are PCCs who stand under party-political banners. There are also independent PCCs. I do not think that there are any Lib Dem PCCs, although the Lib Dems are very good at political campaigning. It is for PCCs to hold their chief constables to account. It is also for police and crime panels to scrutinise PCCs, and they do.

Security and Policing: Facial Recognition Technology

Lord Paddick Excerpts

Thursday 1st March 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I too thank the noble Baroness, Lady Jones of Moulsecoomb, for raising this very important issue. As she says, there is no law, policy or oversight on facial recognition. As my noble friend Lord Scriven said, there is no framework for common governance across the UK in terms of the way in which the police use this technology.

I agree with the noble Lords, Lord Wasserman and Lord Evans of Weardale, that there are some very exciting and potentially extremely positive uses for this technology, but it has to be regulated. It cannot just be a free-for-all. As the noble Lord, Lord Harris of Haringey, said, clearly there will be legitimate reasons for the use of facial recognition. In terms of “smile to pay”, I can pay using my phone where my phone recognises my face. Thankfully I do not have to smile because I am not usually smiling when I have to dole out money.

One of the worrying anecdotes we have heard this afternoon from the noble Lord, Lord Evans of Weardale, was the fact that when he went to a particular place, the camera recognised him from a picture on the internet. We are not just talking about innocent people being arrested who have never been charged, given a caution or been convicted, and that database being used potentially by the police to identify people who are at, say, a demonstration. There is also the potential for using internet images, passport or driving licence photographs. At the moment there is nothing in law or regulation to stop the police integrating those databases—if the Government allow the police to use them—to identify people.

People will say—I am sure the noble Lord, Lord Evans of Weardale, will say it—that the police and security services have no interest in following everybody around. But the noble Baroness, Lady Jones of Moulsecoomb, at the same time as being a member of the Metropolitan Police Authority, was also on its database of extremists without good cause—I am sure. So she could be followed around by these cameras. We really have to ask questions about what is going on. The noble Lord, Lord Harris of Haringey, said that the train has left the station. It may have done, but it is time the Government got in control of this runaway train.

I have four brief points. There is an urgent need for regulation and oversight of the police use of facial recognition. It cannot be right that the policy on this use of technology is left to the police alone to decide for themselves. There is an urgent need to examine what databases are used in conjunction with facial recognition. I will not repeat all the arguments that we have heard from a number of noble Lords about the custody image database, and the fact that images of innocent people are being held potentially illegally on such databases. As I say, there is a potential for completely innocent people who have just applied for a passport or a driving licence, or even people who for some reason are in the public eye whose images are on the internet, being used in conjunction with police and facial recognition technology.

Something that has not been covered in as much detail is the fact that much machine learning, including automated facial recognition algorithms, tend to be discriminatory—in this case disproportionally misidentifying women and black faces as there are fewer black people and many fewer women on custody image databases from which the automated system learns.

Without regulation and oversight there is the potential for Nineteen Eighty-Four to become a reality, albeit 34 years later than originally envisaged. Will the Minister acknowledge that there are genuine and reasonable causes for concern and reassure the House that the Government are urgently looking into these issues?

Yarl’s Wood: Hunger Strike

Lord Paddick Excerpts

Tuesday 27th February 2018 Lords Chamber

Asked by

[Lord Paddick]

To ask Her Majesty’s Government what steps they are taking to respond to the hunger strike at Yarl’s Wood Immigration Removal Centre in Bedfordshire.

[Lord Paddick (LD)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Government take detainee welfare extremely seriously. Any detainee who chooses to refuse food and fluid, for whatever reason, is closely monitored by on-site healthcare professionals. There are a number of established ways in which detainees can make representations on their individual case and about conditions of detention. Individuals are detained only for the purposes of removal from the UK.

[Lord Paddick]

My Lords, about 400 people are detained at Yarl’s Wood detention centre, nearly all of them women. One Algerian woman came to this country at the age of 11 and has been here for 24 years. It was not until she applied for a passport that she was found to be undocumented and detained at Yarl’s Wood. She has been there for three months so far. Does the Minister agree that one of the main reasons for the hunger strikes is that people are being detained unfairly, unreasonably and indefinitely? One woman has described it as like being kidnapped, not knowing when it will end or what will happen to her. The Minister will, of course, say that the Home Office detains people only for as short a period as possible, but at the end of 2017 one person had been in immigration detention for four and a half years. Does the Minister agree that it is time to introduce a 28-day limit on immigration detention, except in wholly exceptional circumstances?

[Baroness Williams of Trafford]

There may be a multitude of reasons for refusing food and fluid. As the noble Lord has pointed out, they may be in protest against their detention but there may also be dietary and religious reasons.

Immigration and Nationality (Fees) (Amendment) Order 2018

Lord Paddick Excerpts

Tuesday 27th February 2018 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, this fees order is to be made using the charging provisions in Sections 68 to 70 of the Immigration Act 2014 and its purpose is to make only a relatively small number of changes to the Immigration and Nationality (Fees) Order 2016, which, along with the Immigration and Nationality Fees (Amendment) Order 2017, remains in place. The changes are needed to ensure that the charging framework set out in secondary legislation for immigration and nationality fees remains current and supports plans for the next financial year.

The Committee will wish to be made aware that there is an error in the draft order and its Explanatory Note. Following further review of the section of the order that deals with circumstances in which a fee may be set in respect of the provision of biometric identity documents, it has been identified that the change we were seeking to make by Article 2(4)(a) has no effect. This is because of the way in which the related legislation—the Immigration (Biometric Registration) Regulations 2008—operates. The intention was to permit the Home Office to charge a fee when a person fails to collect their biometric residence permit within the required time limit, which is not intended as a penalty or fine, but is in line with fees charged for replacement biometric residence permits, where the department incurs extra production costs. However, the Immigration (Biometric Registration) Regulations do not in fact require an application in those circumstances—hence there is no service for which a fee could be charged. Though the Explanatory Note states that Article 2(4)(a) does have an effect, this is incorrect. Before such a change can take effect we will need to amend the Immigration (Biometrics Registration) Regulations 2008. In the interests of transparency for all, the accompanying Explanatory Memorandum has also been amended to clarify the issue.

The 2016 order continues to set out the overarching framework and maximum amounts that can be charged for immigration and nationality functions over the current spending review period, as previously agreed by Parliament. Changes made by this order are intended to clarify existing powers in connection with entry clearance to the Bailiwick of Guernsey, the Bailiwick of Jersey and the Isle of Man. The order will update powers to charge fees when offering premium services in relation to the islands and also make clear that the current definitions of a “sponsored worker”, “unsponsored worker”, “sponsor” and a “certificate of sponsorship” apply in respect of applications to the Isle of Man. Two further changes will delete obsolete provisions, for which no fee is currently set within regulations.

The 2016 order also permits a fee to be set for the acceptance of applications at a place other than an office of the Home Department. This provision currently allows the Home Office to charge a fixed fee when delivering an entirely optional, premium service to enrol biometrics at a place of convenience to service users. Under plans to modernise services offered, the order will now allow for fees to be set at an hourly rate. This will provide greater flexibility and allow a fee to be charged at a level that is commensurate with the time taken to deliver such services.

To be absolutely clear, this change does not affect the Home Office’s basic services, for example, as provided to applicants who enrol their biometric information at a local post office. The amendment is applicable only to those who seek to enrol their biometrics at a place of convenience that they themselves want to specify.

Finally, the order will also update the power to charge for services offered on behalf of certain Commonwealth countries and British Overseas Territories, where such services may not be offered within consular premises.

To recap, we are seeking to make a small number of changes to the 2016 order and maintain the framework for immigration and nationality fees. We are not seeking to make changes to the overarching charging framework, nor to the maximum fee levels that were agreed by Parliament and set out in the 2016 order, other than in respect of the premium service fee about which I have spoken. Individual fee levels to be charged over the course of the next year will be set by new regulations that are due to be laid before Parliament in March 2018.

I commend the order to the Committee.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining the order and for her confession about the error in it. We have a fundamental objection to the approach that the Government are taking to move to a position where fees are charged to cover the costs of providing border, immigration and citizenship services. The security of the UK border is one of the most important mechanisms by which the Government keep us safe and we should not expect those who want to do the right thing and apply for leave to remain and, eventually, citizenship, some of whom come to this country as destitute refugees, to be forced to fund what is fundamentally the duty of the Executive.

Having said that, I understand that these regulations make only one change to the overall fee structure, where the biometric capturing part of an application comes to you and where the eye-watering fixed fee of £10,500 is to be replaced by an extraordinary hourly rate of £2,600. Will the Minister confirm that this is not the actual cost of providing the service, but a fee based on what the market can bear? Will she also explain why the Home Office is not maximising the profit from such a service to enable it to reduce fees in other areas, rather than giving this lucrative money-earner away to a private company? I understand that there needs to be two people to carry out the biometric capture, but if this is purely on the basis of cost recovery are we paying Home Office officials £1,300 an hour? Can I apply for a vacancy?

We support these regulations as far as they go and we look forward to the main event, when the actual fee levels for 2018 are set out in the forthcoming regulations next month. I give the Minister notice that those regulations are likely to be a completely different ball game.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I too thank the Minister for setting out the reasons behind this order and for the clarification she gave in her opening remarks. I too was fascinated by the level of fee charged changing from an overall maximum fee of £10,500 to a fee of £2,600 per hour. Some of us have occasionally done per diem work—I suppose we are not unused to it now—but our eyes can only water at the thought of such an hourly rate. It would be good to know where the justification comes from.

I also add to a point made by the noble Lord, which is that essentially a commercial provider is going to do the work. Although the Home Office will retain full oversight and jurisdiction, the relevant fee will relate to the cost associated with the commercial partner travelling to the location of choice as requested by the applicant. The mind boggles. Can they go anywhere? Without detracting from the quality of the people who will be applying for this service, it makes one wonder what exactly the commercial provider is there to do. Is this rate seriously based on the cost of that commercial provider? Does it build in a profit? It must. I must say that the Explanatory Memorandum begs more questions than it answers on those details.

Nurseries and Schools: Protection from Terrorism

Lord Paddick Excerpts

Thursday 8th February 2018 Lords Chamber

[Baroness Williams of Trafford]

I am very aware of the noble Lord’s advice and recommendations on governing bodies and a single person on a governing body. Governing bodies have to make a judgment as a whole on the health, safety and protective measures that they need to put in their schools. As for guidance, clearly the last year has been unprecedented in terms of security generally and our schools are no less vulnerable. The DfE is currently reviewing its health, safety and school security advice, giving consideration to how guidance material can improve advice that is given to schools.

[Lord Paddick (LD)]

My Lords, the matter that the noble Lord, Lord Harris of Haringey, is referring to is recommendation 121 of his comprehensive report about London’s preparedness to deal with terrorism. Recommendation 11 of that report states that it is essential that UK policing is able to maintain the required international arrangements that currently work to keep us safe. There is no precedent for a non-EU country that is outside Schengen to have access to the essential intelligence databases SIS II and ECRIS, and the European Commission has said that a non-member state cannot have the same rights as a member state. Does the Minister accept that whatever the desired outcomes, we are likely to be less safe if we leave the EU? It is about not what everybody wants but what is legally possible.

[Baroness Williams of Trafford]

In terms of London’s preparedness, the noble Lord will know that there has been quite an uplift in the CT policing budget. In terms of the EU, he will also know through the various debates we have had that the UK has been a leader in work across Europe in law enforcement and counterterrorism data sharing. We have had the pleasurable experience of the passage of the Data Protection Bill, during which law enforcement and other matters were discussed. We very much want to continue that to the extent that we have put the law enforcement directive into UK law.

Policing and Crime Act 2017 (Consequential Amendments) Regulations 2018

Lord Paddick Excerpts

Wednesday 7th February 2018 Lords Chamber

The Policing and Crime Act is transformational legislation helping to drive improved efficiency, effectiveness and accountability of policing and the fire service. As I have said, many of its provisions are already in force and we are on course to implement further provisions this spring. The draft regulations support the implementation of the Act already approved by your Lordships’ House in the previous Parliament, and I commend them to the House.

[Lord Paddick (LD)]

My Lords, I thank the Minister for introducing the statutory instrument. The House will forgive me, but my body has decided to go sick two days early, so if I do not make much sense, that probably accounts for it.

The complexity involved in the instrument is staggering. It involves 12 pieces of primary legislation and has 32 footnotes. As far as I can see, the instrument is reasonably innocuous, but I am concerned that people will find it impenetrable. I engaged my noble friend Lady Hamwee to help me to interpret it, and she assured me that if she had eight hours uninterrupted, she could probably be more certain about the impact. With the Brexit legislation to come, when similar statutory instruments may come in a blizzard to this House, the House will be concerned about its ability properly to scrutinise them.

I do not want to go over the discussions we had during the passing of the Act, but I will refer to what the honourable Member for Sheffield, Heeley, said yesterday when these matters were discussed in the other place around the limitations on pre-charge bail. The concern, which we share, is that now that a suspect is likely to be released pending further investigation but not on bail, the suspicion hangs over that individual and they never know whether they will be arrested again, whereas when they were released on pre-charge bail, there was a specific time when that person would come back to the police station. There was a limit to the uncertainty.

We not only argued from my professional experience but quoted evidence from the Police Superintendents’ Association and from the professional bodies in policing that the 28-day limit was not sufficient, bearing in mind the sorts of inquiries that have to be done now in terms of investigating computers, mobile phones and so forth. Can the Minister give us some reassurance about whether, contrary to what the law change was supposed to achieve—that is, to bring investigations quickly to a conclusion—this change may have the opposite effect?

Investigatory Powers (Codes of Practice) Regulations 2018

Lord Paddick Excerpts

Thursday 1st February 2018 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I am happy to support the Minister in everything she has said about these regulations. A few years ago I had the privilege of chairing the Joint Select Committee on the draft of the Investigatory Powers Bill. The committee made around 80 recommendations which were all accepted by the Government, and I think that few Bills in the past couple of Sessions have been subject to as much scrutiny as this one. It was considered for many days in this House and in the other place, as well as in the Joint Committee. It was right that that was the case because the powers given by the Bill to the intelligence agencies are very wide and deep—rightly so, but safeguards have been built into the Act and now, of course, they are built into the regulations as well. That is necessary because we have to strike a balance between the liberty of the individual on the one hand and the safety of our citizens on the other.

I welcome in particular the regulations on the codes of practice, which were central to the thinking of the Joint Committee. The Minister in the other place, Mr Ben Wallace, indicated that they are “user friendly” in terms of their language, and certainly they are more user friendly than the regulations themselves, which are phrased in gobbledegook, to say the least. The Technical Advisory Board, something that the committee recommended, has now been set up. It is an important development along with, as the Minister has said, the appointment of the new Investigatory Powers Commissioner, Lord Justice Fulford. On behalf of the Opposition, my successor as the Member of Parliament for Torfaen, Nick Thomas-Symonds, supported these recommendations and I do not doubt that my noble friend Lord Kennedy is likely to do the same. As a former chair of the Intelligence and Security Committee, I support them too because these regulations are vital to implementing the Act. I also congratulate the services on their work in ensuring that our children are safe from paedophiles and our citizens are safe from terrorists.

[Lord Paddick (LD)]

My Lords, if the House will allow me, I should like to make a few comments about what happened during Oral Questions yesterday. Perhaps I may say that the decision of the Prime Minister, the right honourable Theresa May, to refuse the resignation of the noble Lord, Lord Bates, was one of her better decisions. I also commend the noble Lord, Lord Taylor of Holbeach, on how he picked up the loose ball and ran with it. It just shows what the Government can do if they work together rather than against each other. The noble Baroness, Lady Smith of Basildon, reflected the views of the overwhelming majority in the House in indicating genuine respect and affection for the noble Lord, Lord Bates. We are very pleased that he is having a couple of days of well-earned rest before he resumes the fray. However, I fear that is the end of me being nice.

I thank the Minister for introducing these regulations, which, if the House will allow me, I will take in the order set out on the Order Paper rather than in the order in which the Minister spoke to them. The regulations have been introduced against a background of two linked and significant matters. First, the 16th report of the Secondary Legislation Scrutiny Committee states:

“Because bulk interceptions in particular have the potential to include communications of people who are not suspects as well as those who the security services are targeting, this legislation is likely to be of interest to the House”.


In other words, this important committee of the House has given these regulations a red flag, not least because the codes of practice run to several hundred pages. Again I quote:

“We were therefore disappointed with the obscurity of the original Explanatory Memorandum which gave the reader no indication of the potential effects of these Codes.”


Secondly, the Home Office is having to make late changes to the Investigatory Powers Act in an attempt to comply with the European Court of Justice ruling on the UK’s mass surveillance powers following the decision of the Appeal Court this week. We had long debates, as the noble Lord has just said, during the passage of the Investigatory Powers Bill. We on these Benches argued that the bulk acquisition of communications data treated everyone in the UK as a suspect. We drew a distinction between mobile phone data that is routinely kept by communications services for billing purposes—such as where was the call made and where was the person calling, so that the person can be charged the right amount on their bill—and new communications data that CSPs do not routinely collect; for example, so-called internet connection records, where CSPs will be required to keep a record of the first page of every website that every user of the internet in the UK visits on a rolling 12-month basis. The Investigatory Powers Act allows police and other organisations to self-authorise access to such data. The Appeal Court ruled on Tuesday that the Data Retention and Investigatory Powers Act 2014, many of the powers in which are incorporated in the Investigatory Powers Act, is inconsistent with EU law because of a lack of safeguards and the absence of a prior review or an independent administrative authority.

Noble Lords may wonder what this has to do with the regulations before the House today. The Investigatory Powers (Codes of Practice) Regulations 2018 include a draft code of practice on bulk acquisition of communications data. My understanding is that the Government claim that the judgment does not affect bulk acquisition of communications data because this is limited to the intelligence services—the Security Service, the Secret Intelligence Service and GCHQ—and that these organisations are concerned with national security, which is outside EU data protection law. The first problem with this is that GCHQ, in particular, is involved in accessing data in relation to serious crime; for example, working jointly with the National Crime Agency on child sexual exploitation, which is not within the normal definition of a national security issue.

The second problem is that, after Brexit, the UK will be treated as a third-party country by the EU 27. National security issues will no longer be exempt from scrutiny and compliance with EU law if the UK wants to continue to exchange data with the EU 27. Will the Minister explain what impact the UK’s need to secure an adequacy certificate from the EU in relation to compliance with EU data protection standards once we exit the EU will have on the bulk acquisition draft code of practice? Will she also explain what advice Ministers are receiving about the likelihood of success of Liberty’s other challenge to the Investigatory Powers Act, due to be heard in the High Court later this year, and what effect that will have on these codes of practice? The bulk acquisition draft code of practice also talks about communications operators receiving public funding and support to ensure that they can provide an effective and efficient response to the security services’ requests for data. Can the noble Baroness tell the House how much public funding will need to be provided, particularly in relation to ICRs that are not collected and stored at the moment?

On the second code of practice, in relation to equipment interference, we pointed out in debate on the Investigatory Powers Bill the anomaly that while requests from the security services for equipment interference—downloading the contents of a mobile phone or exploiting weaknesses in software to enable remote accessing of a computer, for example—had to be authorised by a Secretary of State, requests by law enforcement agencies for equipment interference could be self-authorised by a law enforcement chief. The interception of communications warrants, covered by the third code of practice, has to be authorised by a Secretary of State whether the request comes from the security services or law enforcement agencies, but a Secretary of State’s authority is not required in the case of equipment interference warrants for law enforcement agencies. Surely, in the light of the decision of the Court of Appeal, such self-authorisation should no longer be permitted.

Targeted equipment interference warrants can be issued against equipment belonging to or in the possession of an organisation or equipment in a particular location. Can the Minister explain, if warrants allow interference with the equipment of innocent people within that organisation or at that location—collateral damage, if you will, in pursuit of the real criminals and terrorists—how that is compliant with the ruling of the High Court and the ECJ?

The Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations are straightforward and we support them. The Investigatory Powers (Review of Notices and Technical Advisory Board) Regulations deal with appeals against technical capability notices, national security notices and data retention notices, which include consultation with the Technical Advisory Board. These regulations set out the composition of the TAB and the process and timing of appeals. We support these regulations as well.

Finally, we come to the Investigatory Powers (Technical Capability) Regulations, setting out what may be contained in technical capability notices, which impose obligations on a relevant operator in order that the operator can deliver what is required if served with an interception warrant, equipment interference warrant, or warrant or authorisation for obtaining communications data. In the tech sector, techUK represents 900 companies, employing about half of all those employed in that sector in the UK, and it has raised concerns about technical capability notices arising from these regulations.

Clearly, communication service providers must have the technical capability to be able to comply with lawfully authorised warrants. But these regulations also require CSPs,

“to notify the Secretary of State, within a reasonable time, of—

(a) proposed changes to telecommunications services or telecommunication systems to which obligations imposed by a technical capability notice relate;


(b) proposed changes, to existing telecommunications services or telecommunication systems, of a description specified in the notice, and


(c) the development of new telecommunications services or telecommunication systems”.


In her opening remarks, the Minister said that these regulations do not create new powers. But techUK claims that these notifications of innovation were not listed on the face of primary legislation, albeit that the primary legislation states:

“The obligations that may be specified in regulations under this section include, among other things”.


I emphasise “among other things”. It goes on to express concern that these provisions could force tech companies half way through development to notify the Home Secretary about what they were doing and that the Home Secretary could then come back and demand changes, extending the tight deadlines under which they operate and risking information about commercially sensitive developments being made public to the benefit of competitors. These provisions could be a barrier to innovation and drive tech companies overseas beyond the reach of these regulations. Can the Minister provide some reassurance to the House that these additional provisions will not stifle innovation and drive tech companies overseas?

--- Later in debate ---

[Lord West of Spithead]

Does not the Minister agree that the collection of bulk data does not assume that everyone in our population is a suspect, as the noble Lord, Lord Paddick, said, any more than the camera systems on our public transport assume that everyone on that bus is a suspect? Rather, it highlights and spots the person who sticks a knife in someone.

[Lord Paddick]

I am very grateful to the noble Baroness. The question I was asking, reflected by another noble Lord during the debate, was: what is the impact of the Appeal Court ruling this week and the decision of the European Court of Justice on these very issues? The expression I used was one that came from that judgment rather than being one I was adopting as my own.

[Baroness Williams of Trafford]

Sometimes the problem with interventions is that you do not get around to saying what you were going to say. Perhaps noble Lords will be patient. The noble Lord, Lord West, put it very succinctly and illustrated what we mean by bulk data.

Where the content of a communication is to be examined when it is of a person known to be in the British Isles, a separate targeted examination warrant must be obtained, which is in itself subject to approval by the Secretary of State and a judicial commissioner. The codes of practice that I have been outlining today provide additional safeguards on the use of bulk powers relating to filtering data, the training that must be obtained by those examining it and how bulk data should be handled, retained and destroyed.

The noble Lord, Lord Paddick, also asked if warrants allowed interference with devices of innocent people and asked how that was compliant with the ECJ ruling—the question on everyone’s lips. Equipment interference is subject to stringent safeguards and any warrant must be necessary and proportionate and must be approved by a judicial commissioner. This House has, of course, approved those strong safeguards.

I see the noble Baroness, Lady Chakrabarti, looking quite interested, because the noble Lords, Lord Paddick and Lord Butler, asked about the Liberty challenge to the IP Act and the Government’s response to it. The judgment handed down by the Court of Appeal on Tuesday this week—I presume that that is the one that they are referring to—relates to the challenge brought against the DRIP Act. It has now been replaced by provisions in the Investigatory Powers Act, and therefore the judgment relates to legislation that is actually no longer in effect. The provisions in the Act challenged by Liberty, which will be heard at the end of February in the High Court, relate to targeted communications data and, therefore, are not relevant to the debate today.

I move on to the technical capability regulations. I was asked whether they would stifle innovation. To be clear here, none of the regulations that we are discussing today in and of themselves place any burden on industry. To suggest that the Investigatory Powers (Technical Capability) Regulations 2018 would damage companies operating in this country is to misunderstand what the provisions in those regulations actually do. Those regulations do not themselves impose any requirements on telecommunications or postal operators. Rather, they set out what obligations could be imposed on an operator through a technical capability notice. The power for the Secretary of State to give such notice is set out in the Investigatory Powers Act itself, and has therefore already been approved by Parliament. There are stringent safeguards in the Act regulating the use of technical capability notices to minimise the impact on businesses, including that the notice must be necessary, proportionate and approved by a judicial commissioner. As I have already said, before giving a technical capability notice to a relevant operator, the Secretary of State must consult that operator. In addition, the Secretary of State must consider a number of factors before deciding to give a notice. Those factors include the technical feasibility and likely cost to the operator complying with the notice, which goes to the heart of ensuring that a notice does not damage a company’s interests.

The Act also makes it clear that the Secretary of State must ensure that arrangements are in force for securing that relevant operators receive an appropriate contribution in respect of their costs incurred in complying with the Act, as the Secretary of State deems appropriate. Such costs include those incurred in relation to complying with a technical capability notice. The Government’s policy is that the appropriate contribution is calculated on a case-by-case basis to ensure that the operator makes neither a loss nor a gain from complying with the Act. A number of the draft codes of practice that we have debated today include an entire chapter on technical capability notices, giving further information about their use, including details of the cost recovery process and the sorts of activities it is anticipated that the Government would fund as part of an operator maintaining a capability.

I may be repeating myself here, but the noble Lord, Lord Butler, asked about making sure that the codes of practice on retention records are made consistent with this week’s ruling. The judgment related to the retention of communications data by telecommunications operators is not being debated today. The CJEU ruling was not about safeguards for equipment interference or for access to bulk communications data. The IP tribunal considered the specific issue of whether the CJEU judgment applied to bulk communications data and has made a further reference to the CJEU on this very point and on whether the bulk communications data regime is within the scope of the judgment’s safeguarding requirements.

[Lord Paddick]

My Lords, I realise that I am intervening a bit late, but I did not want to interrupt prematurely, as I did before. Will the Minister comment on techUK’s specific suggestion that the regulations impose an additional aspect to the technical capability notice, in that the Home Office will be alerted to changes in innovation in systems and development? I do not think that the noble Baroness has addressed that specific issue.

Crime: Scooter and Moped Gangs

Lord Paddick Excerpts

Tuesday 23rd January 2018 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is right that these crimes can become in themselves a fashion or a trend. With regard to the options open to the judiciary, clearly precedents can be set in respect of the types of crime committed in terms of future sentences meted out.

[Lord Paddick (LD)]

My Lords, I understand that the Metropolitan Police is having some success with police on scrambler bikes dealing with this type of crime, but its overall vehicle fleet is having to be cut because of budget cuts, to the extent that some criminals are being de-arrested because there is no prisoner transport available. I understand the Government will insist that they are maintaining police funding, but the Metropolitan Police says that it has suffered £600 million in cuts since 2010, with another £400 million in cuts in the pipeline. Who is right about police funding, the Government or the Commissioner of Police for the Metropolis?

[Baroness Williams of Trafford]

My Lords, as I said yesterday, police forces across the country have requested increases in funding and, as I outlined yesterday, that is what they have got, with the potential offered by some of the technologies available to them to release 11,000 police officers to do whatever jobs individual forces feel are appropriate. On the noble Lord’s point about scrambler bikes and in the context of the first part of my answer, I know that this is a particular problem in London and if police forces feel that that is the investment they should make then they should be free to do so.

Policing and Crime Act 2017 (Maritime Enforcement Powers: Code of Practice) Regulations 2017

Lord Paddick Excerpts

Monday 22nd January 2018 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Policing and Crime Act 2017 provides police officers and other law enforcement with certain powers in the maritime environment so that they are able to prevent, detect, investigate and prosecute criminal offences that take place on vessels where the courts in England and Wales have jurisdiction. These provisions close a gap in enforcement powers, ensuring that law enforcement officers are capable of functioning effectively to tackle crime on sea as on land. This is because Section 30 of the Police Act 1996 places a geographical restriction on the exercise of police powers, limiting these to England and Wales and the adjacent waters; that is, the territorial waters which extend to 12 nautical miles.

The maritime provisions, once commenced, will give the police and other law enforcement at sea similar powers to those available to enforcement officers in relation to drug trafficking and modern slavery. The difference is that these powers cover all offences under the law of England and Wales. In summary, these are: the power to stop, board, divert and detain a vessel; the power to search a vessel and obtain information; and the power to arrest and seize any relevant evidence.

The Policing and Crime Act enables law enforcement officers to use these powers in relation to certain ships in international and foreign waters as well as the territorial waters of England, Wales and Scotland. Principally, the vessels will be UK flagged, but law enforcement will also be able to act on non-flagged vessels and foreign ships in certain circumstances in international waters as well as territorial waters. These powers are important because crimes such as rape, murder, firearms offences and grievous bodily harm can take place on UK-registered ships beyond the territorial waters limit, just as they can within those waters or on UK soil. There are other crimes specific to the maritime context, such as illegal fishing, unsafe vessels, piracy and marine theft, which the police must be able to tackle just as effectively as when the crime is committed on land.

Before these new powers are brought into force, a code of practice issued under Section 94 of the Policing and Crime Act will need to be put in place for English and Welsh law enforcement officers to follow when arresting a person under Section 90 of the Act. The code must set out certain rights and entitlements of persons arrested under Section 90, particularly the information to be made available to them on arrest. The Government have now prepared this code of practice, and it was placed before the House on 16 November 2017, together with these regulations. The regulations are necessary to ensure that the code of practice will be in force at the same time that the maritime powers in the Act are commenced.

The code provides guidance as to the information that should be given to a suspect at the time of their arrest. It makes it clear that suspects should be provided with a summary of their rights and warned if it may take more than 24 hours to bring them to a police station. The code will ensure that law enforcement officers provide suspects with information; this includes ensuring that those detained understand what is said to them. Officers will also be obliged to make arrangements to safeguard the health and welfare of arrested persons.

To ensure that the code will be practical and effective, the Government have consulted the law enforcement agencies that will use this code, representatives of the legal profession, devolved Administrations, other external organisations and interested government departments.

Police Scotland is currently drafting equivalent but non-statutory guidance concerning the exercise of its maritime enforcement powers, and we are working closely with the Scottish Government to ensure that this guidance is appropriately aligned. The Northern Ireland provisions will also be covered by non-statutory guidance. The Northern Ireland maritime provisions will be commenced separately to those of England, Wales and Scotland, at a date determined by the Northern Ireland Executive.

The maritime powers in the Policing and Crime Act are essential if we are to ensure that our police and other law enforcement are equipped to be effective at tackling criminality, to enforce the law and to protect the public. However, when these powers are used, it is vital that they are used properly, particularly when a person’s liberty is restricted as under the power of arrest, and that is why the code of practice and these regulations are so important. I ask noble Lords to support the new code, and I commend the regulations to the House.

[Lord Paddick (LD)]

My Lords, I thank the Minister for introducing these regulations. I am not sure how illegal fishing is to be enforced against just as effectively as if it was committed on land, but I accept the general point.

We raised concerns during the passing of the primary legislation regarding the extent of these powers, bearing in mind that, as the Minister has said, they allow a law enforcement officer to arrest a person for anything that is an offence in England and Wales on a United Kingdom ship in British waters, in foreign waters or even in international waters. I raised the prospect during those debates that there could be a special constable on a cruise ship pulling out of Southampton who gets into an argument with someone who pokes him in the eye, and who then decides to arrest that individual and orders the “Queen Mary 2” to return to Southampton. The regulations and the power in the Act would allow that. There is nothing in the guidance to officers on the use of discretion, or indeed on whether the powers should be restricted to more serious offences.

The other slightly worrying issue in the draft code is the reference to the Act including,

“a power to require a person on the ship to provide information about themselves and about anything on the ship. The purpose of this is to enable law enforcement officers to take control of the ship”.

I hope that the special constable will not be steering the “Queen Mary 2” into Southampton, with his common assault suspect.

More seriously, in addition to those concerns about the rank of the officer who is using these powers, there is the seriousness of the offence. While I accept that the sorts of offences that the Minister mentioned—rape, murder, firearms and grievous bodily harm—are very serious offences, it is not an exclusive list.

HIV and AIDS

Lord Paddick Excerpts

Monday 18th January 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, I, too, congratulate my noble friend Lady Barker on eventually securing this debate. I have been getting to know a new friend over this weekend and I have been telling him about my life and my experiences. One of the things that I spoke to him about was the fact that, in the late 1970s and early 1980s, mainly because of social pressure, I was dating women rather than men, and in 1983 I married one. Had it not been for that social pressure, for my marriage to Mary and for living faithfully in that marriage for five years, I probably would not be here addressing noble Lords this evening—that, and the pioneering work of the noble Lord, Lord Fowler, when he was Health Minister. That is personal for me.

Thankfully, medical science has moved on from those days when there were so many—too many—deaths in western countries because antiretroviral drugs were in their infancy and not always effective. The problem then was lack of scientific knowledge. Today, lack of funding is causing unnecessary and completely preventable deaths, together with prejudice and discrimination, as many noble Lords have already said.

The way the pharmaceutical sector works is that new and effective medicines are developed at significant cost on the basis that the companies will see a return on their investment through high drug costs. Once the costs are recovered, there is the opportunity to produce generic drugs at lower cost. This is the situation that we are in generally with primary treatment for HIV. In many cases, people can be successfully treated using primary treatment at low cost, as my noble friend Lady Barker said. But the virus develops resistance and sometimes secondary and third-line treatments are necessary—but these drugs are too expensive for many low and medium-income countries to afford.

As many noble Lords have said, the other issue is high-risk groups where HIV is most prevalent: intravenous drug users, men who have sex with men, sex workers and the transgender community—people who not only face the highest risks but, because of society’s prejudice in some countries, are the least likely to get treatment.

I am sure your Lordships will remember the UK Government campaign, “Don’t die of ignorance”, that the noble Lord, Lord Fowler, spearheaded. In a different sense, perhaps, people are still dying of ignorance: the ignorance that results in prejudice and discrimination. It is not just these high-risk groups that should have an equal right to treatment. The fact is that they infect others, not least unborn and infant children. As my noble friend Lady Barker said, 60% of new infections are among women. The excellent all-party group report on HIV and AIDS put it so well: this is not someone else’s problem; this is everyone’s problem.

Medical science has come a long way. For those who are being successfully treated for HIV, and whose levels of HIV virus in their bloodstream are so suppressed by medication that they do not show up in tests and whose immune system is healthy, it is almost impossible to pass on the infection to others. It is vital that people know whether the treatment they are receiving is effective, so access to regular viral testing is also an essential part of the solution.

There are new developments all the time. I am currently part of a clinical trial in the UK of pre-exposure prophylaxis, or PrEP, where a daily dose of medication can prevent HIV infection in the first place. The results of the trial so far show that it is a highly effective way of preventing further HIV infection—but again, whether it becomes available on the NHS is another cost question.

It is Oscar season and again this year the Elton John Aids Foundation will be holding its annual Oscar viewing party to raise money to fight HIV. But charities such as this—and there are many of them—that are trying to raise funds to eradicate HIV, which is now scientifically possible, cannot win this fight alone. They need Governments’ financial support and willingness to join them in the battle, which will help such charities to raise funds themselves.

This is an important report at a time when we need to renew our commitment to an HIV-free world. All it needs is the political will to bring this about and I urge the Minister to ensure that this Government show leadership in committing the necessary resources and encouraging others to follow their example.