Policing and Crime Bill

Lord Pannick Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have some comments on Amendments 216 and 217 for consideration by the Committee. On Amendment 216, I am doubtful that Section 35 of the Criminal Justice and Courts Act 2015 needs amendment to add the words “breasts” and “buttocks”. The reason for that is that Section 35(3) already defines a photograph or a film as sexual if,

“it shows something that a reasonable person would consider to be sexual because of its nature”,

or if the,

“content, taken as a whole, is such that a reasonable person would consider it to be sexual”.

The reason why I anticipate that the 2015 Act does not make a photograph of a breast or a buttock necessarily sexual is that it is very easy to think of circumstances in which such a photograph is not sexual by reason of its context. It may be a photograph of your child in a swimming pool with their breast exposed; it may be a photograph of a breast-feeding mother. It may be a beach shot of my family that shows someone in the background wearing a thong. It all depends on the context—and if the context is sexual, the Act already covers it.

Subsection (4) of the proposed new clause in Amendment 217 would create a new criminal offence of promoting, soliciting or profiting from “private photographs and films”. I have no difficulty, of course, with the idea that that should be a criminal offence. I point out that that subsection, however, does not use the word “sexual”. I assume that that is a drafting error; it talks about profiting from “private photographs and films”, but I think it should say “private sexual photographs and films”. Otherwise, it has a very different scope—which I see from the nodding on the Liberal Democrat Benches was not intended.

[Lord Marks of Henley-on-Thames]

The noble Lord, Lord Pannick, is plainly right on that—it needs amendment.

[Lord Pannick]

I am grateful. My only other point on Amendment 217 is one that I think the noble Lord, Lord Marks, accepted in his helpful opening speech. The offence in subsection (4) is committed if the defendant reasonably believes that the photographs or films were “disclosed without consent”. That would be anomalous since the primary offence—the offence committed by the person who discloses private sexual photographs or films—rightly requires the prosecution to prove that the disclosure was without the consent of the individual.

[Baroness Grender (LD)]

My Lords, I support the amendments in this group. I am delighted to see the noble Lord, Lord Faulks, in his place, as the Minister who announced the changes in the legislation when some of us were campaigning to get it transformed. It was a very proud moment when he announced it—quite late in the evening, as I recall—and we had watching in the Gallery a whole row of ladies, plus one man, who had broken their anonymity and shared with us the appalling experiences that each of them had been through as a result of revenge porn.

I am very proud that, even with the limited amendments that we managed to get through to the Criminal Justice and Courts Act 2015, we are now as a nation a little further ahead than most others in trying to deal with a very difficult issue. But there are so many more who are not caught in the current legislation. While in 2015-16 we know that 206 individuals were prosecuted under the new law, a survey by “Good Morning Britain” revealed that police forces in England and Wales had dealt with a total of 2,130 cases. There is quite a difference between these numbers in terms of what is going forward to prosecution, and we have already heard what some of the difficulties in that area are likely to be.

It is also critical that we as parliamentarians stay ahead of the speed of change in attitudes and behaviour that smartphones and social media bring in their wake. In the US, a McAfee study revealed that 36% of people had sent or intended to send an intimate picture. As legislators, we have to understand that, whatever our attitude to and opinion of that, we need to create laws that foresee the way that society is changing. These amendments therefore necessarily go further and we must credit the Women’s Equality Party for its part in doing some of the drafting, which resulted in us trying to amend this in the other place.

I particularly want to address the issue of anonymity. When we ran this campaign a year ago, some women stepped forward and were prepared to be named when they recounted what they had gone through. But part of the problem was that many victims were too scared to put their names out there. This happened to one lady whom we dealt with—because her name was out there and she was campaigning against this, it ensured that she got far more coverage on some of the websites that she was deliberately trying to avoid. It has now been accepted in current legislation by this Government that victims of forced marriage are given that anonymity; I see this as being a very similar area.

I will conclude here. I think that we are aware that in this area there are issues of suicide, self-harm and damaged reputation. As we talk now there are hundreds, perhaps thousands, of young men and women who are sharing intimate images that, frankly, will have a devastating impact on their future. It is up to us, through some of these amendments, to be ahead of the law at every stage.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I strongly support the noble Lord, Lord Paddick, and his very reasonable amendment. The Committee is very lucky to have his expertise. Unfortunately, I have limited experience in the area of PACE and police investigations, so I am unable to offer the Committee my own solution. However, I have no difficulty in seeing that something is seriously wrong and needs urgent attention, and I intend to support the noble Lord vigorously.

Throughout the passage of the Bill, the Minister has never hesitated to rely on the principle of operational independence for the police, but it is a principle that I think is often taken too far and seems to me to be an excuse for doing nothing. Interestingly, when the then Home Secretary, my right honourable friend the Prime Minister, wanted to curb the use of stop and search powers, operational independence did not seem to be a problem.

In public life, some people are important, some are powerful, some are senior and some are all three. Fortunately, I am none of these, so there is no risk to me of being subject to a sensational and false allegation, because no one would be the slightest bit interested.

It is not often that the Metropolitan Police has to investigate someone who is far more senior than the commissioner himself. When such a situation arises, no one—as far as I am aware—is suggesting that an investigation should not take place; far from it. In fact, in recent years we have seen Cabinet Ministers investigated and prosecuted. As far as I know, during Operation Midland Ministers and the Government did absolutely nothing and let the police follow the evidence, and rightly so. We would not expect anything else, and we do not want to repeat the mistakes of the past.

Nevertheless, if the Metropolitan Police decides to investigate someone as senior as the noble and gallant Lord, Field Marshall Lord Bramall, KG—Knight of the Garter—one would expect the commissioner to keep himself very closely informed indeed, not least because it could have adverse effect with our overseas opponents. It also could cause very serious reputational damage to the Metropolitan Police if the operation turned out to be flawed.

The Committee will be aware that Lord Bramall was Chief of the Defence Staff at the height of the Cold War. Our Security Service, over many years, would have formally and informally taken all the necessary steps to ensure that he could be trusted with large amounts of highly classified material. Our “Four Eyes” partners would also have relied on that confidence, but the exceptionally overt Operation Midland investigation could well have called into question the reliability of our vetting procedures.

Lord Bramall would have known everything when he was Chief of the Defence Staff. For instance, in the event of a mass armoured attack on the north German plain, would we have used tactical nuclear weapons? He would have known. What serious weaknesses did we have that our opponents were unaware of? He would have known. What weaknesses did our opponents have that we knew about but they did not? He would have known. If there was any problem with Lord Bramall along the lines alleged, it would have been of strategic significance. It would have been unbelievably serious.

At Question Time last week, the Minister referred to the Henriques report. The report was initiated and the terms of reference were set by the commissioner. Apparently, this means he can also determine what is published and what is not. Therefore, my first question to the Minister is: does the report and its terms of reference cover the failure of the commissioner to terminate the Operation Midland inquiry into Lord Bramall as soon as possible after it became obvious that there was not one shred of incriminating evidence? Secondly, has my noble friend read the report? Will the Home Secretary initiate an inquiry on her own terms, so that she can determine what will be published?

I am extremely unhappy about the procedure for obtaining search warrants, although my advice is that the magistrate concerned probably did the right thing by granting one in the Bramall case. What is the point of involving the judiciary if magistrates grant a warrant in such circumstances as Lord Bramall’s case? What questions were asked of the police requesting the warrant in such an improbable case? For instance, were they asked whether the Security Service had been consulted and whether the sanity of Nick had been checked by a medically qualified person? If the complaint turned out to be fiction and baseless, would a criminal prosecution of Nick be inevitable because that should be the remedy for a malicious and baseless complaint? It would also be interesting to know whether the commissioner asked these questions. It now seems that it may be better to allow a senior police officer to authorise a search rather than relying upon the judiciary. At least there is some mechanism for holding senior officers to account, eventually.

If this totally flawed inquiry can be inflicted upon a retired officer of stratospheric seniority with apparent impunity, what is to protect the ordinary man in the street? It seems to me that the judiciary dish out search warrants like sweets, despite how distressing it must be for an innocent person, whatever their status. So far as I can see, the Commissioner of the Metropolitan Police had the power to terminate this inquiry at an early stage, but chose not to do so for presentational reasons. He could have written a sincere letter of apology to Lord Bramall, but chose not to, presumably on legal advice. Luckily, Lord Bramall has not passed away too soon; it is a pity the same cannot be said for Lord Brittan or, indeed, Lady Bramall.

Both these failings seem to me to indicate a lack of capacity to take an unpalatable course of action. It is not unusual for retired Commissioners of the Metropolitan Police to be offered a seat in your Lordships’ House, but your Lordships’ House is overfull with active Members. We already have far too many Peers, and we already have several retired senior and very senior police officers who are already meeting the needs of the House exceptionally well, not least the noble Lord, Lord Paddick. It is not clear to me why we would need another retired commissioner, and one who appears to be unable to write a sincere letter of apology to a Field Marshal who has had his reputation traduced solely because he is such a senior officer and a great public servant. If the police use their powers carelessly, it is our duty to constrain them.

[Lord Pannick]

My Lords, the Committee will be very grateful to the noble Lords, Lord Paddick and Lord Campbell-Savours, for bringing forward this amendment on what is undoubtedly an important issue. I am sure the Committee shares their sense of outrage—I certainly do—at the treatment of Sir Cliff Richard and others who were wrongly and unfairly accused of sexual offences, but I am not persuaded that this amendment is the answer to the problem. A prohibition on publicising an accusation of a sexual offence raises many difficulties.

The first is that publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward.

[Lord Campbell-Savours]

Surely they can come forward during the course of the trial.

[Lord Pannick]

The problem is that they come forward during the course of the trial only if there is one. By reason of the publicity, they are encouraged to come forward and present evidence that helps to persuade the prosecuting authorities that the matter should proceed to a trial. That is the difficulty. The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed. That is the first problem.

The second problem is that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. There are cases in which publicity has been sought by the person wrongly accused and this helps to exonerate that person. I appreciate that this amendment would allow the person accused to seek permission from the judge to publicise the matter in the public interest. But if I am wrongly accused of a sexual offence, I should not need to persuade a judge that it is in the public interest for me to be able to publicise the fact. I am entitled to publicise the matter because it is in my interests.

The third problem is common to restrictions on open justice. You can prevent publication of the name of the person concerned, but you cannot prevent people in the know from gossiping. The consequence is that a larger group of people know the name of the person concerned. Those who do not know inevitably speculate. This amendment or any variation of it would not prevent the press from publicising—and they would—that a famous footballer, a well-known pop star or a senior politician has been accused of a sexual offence. It would not prevent the press from publicising details as long as this does not identify the specific politician, pop star or footballer concerned.

[Earl Attlee]

I am sure that the noble Lord is right. Would that not let other victims know that their allegations would be taken seriously?

[Lord Pannick]

No. They would not know who the individual was. This of course is very unfair on famous footballers, well-known pop stars and senior politicians who are not the subject of the accusation. Can they issue a press release to say that they are not the person concerned? That is the third problem.

The fourth problem is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not it is the police making the accusation. It seems to suggest that any accusation of a sexual offence would prevent publicity, but how far does this go?

Fifthly, the amendment fails adequately to address when the prohibition on publicity comes to an end. As drafted, the prohibition on publicity ends when the person concerned is charged with an offence. But let us suppose that the police decide not to bring charges and the person concerned is exonerated. Under this amendment, it seems that no publicity is allowed even at that stage—the person concerned cannot tell the world that he has been vindicated and the press still cannot report that a false allegation has been made.

[Lord Campbell-Savours]

The noble Lord has listed a number of objections. He is an eminent lawyer. How would he solve the problem in a way that enables people to protect their reputations when they are innocent?

[Lord Pannick]

The way that people protect their reputations is that we all have to emphasise the importance of the presumption of innocence. It is quite wrong that people such as the doctor to whom the noble Lord referred are subjected to serious detriment simply because an allegation has been made. That is the basis of English law: you are innocent until you are convicted. That is the principle and I do not accept that the nature of the problem justifies an amendment of this sort, which would lead to all the problems I have sought to identify.

[Viscount Hailsham]

My Lords, notwithstanding the very eloquent speech made by the noble Lord, Lord Pannick, I am in favour of this amendment, subject to one or two points I am going to make. If the noble Lord will forgive me, most of his points are drafting points, which could be dealt with by way of further discussion and a further amendment. I take the point that there are defects in this amendment but in my view, the principle that the noble Lords, Lord Paddick and Lord Campbell-Savours, are aiming at is correct and the arguments that have been advanced by the noble Lord, Lord Pannick, are not correct.

I have two reservations. First, I note that one of the principal mischiefs that this amendment should capture is not dealt with at all: communication by police officers to the press, often for money. I know perfectly well that that is covered by existing legislation and I have no doubt that communication by a police officer giving private information regarding accusations is contrary to the disciplinary code, but if we are moving an amendment of this kind, we should seek to catch the very serious mischief of police officers giving private information to the press.

Independent Inquiry into Child Sexual Abuse

Lord Pannick Excerpts

Tuesday 13th September 2016 Lords Chamber

[Baroness Williams of Trafford]

The noble Baroness makes a very important point. The chairman and the whole inquiry have the support of the victims’ and survivors’ group. As I have stated, the aim is to produce an interim report by 2018.

[Lord Pannick (CB)]

Does the noble Baroness agree that, for the inquiry to make so-called findings of fact about the alleged conduct of the late Lord Janner, and to do so without any intensive process of cross-examination of the witnesses, is grossly unfair to the reputation of someone who is unable to defend himself? Does she recognise that the inquiry is purporting to do more than look at institutional failings? I declare an interest as a friend of the late Lord Janner’s son, Daniel.

[Baroness Williams of Trafford]

My Lords, it is for the inquiry to consider the best way to conduct its investigations and hearings, and it would not be appropriate for me to comment. I understand that counsel to the inquiry set out the inquiry’s position on this issue at the preliminary hearing of the investigation into Lord Janner in July.

Immigration Bill

Lord Pannick Excerpts

Tuesday 10th May 2016 Lords Chamber

[Lord Rosser (Lab)]

In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.

That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?

This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Ramsbotham, made a powerful speech. I will say a word in response to it. I am sorry that the noble Lord thinks that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and I were focusing on the “periphery” last week and supporting a “fudge”, as he put it. Your Lordships need to focus on the noble Lord’s amendment. It provides that, after 28 days, there would be no possibility of detention of a person for immigration reasons other than in exceptional circumstances. Last week I found that not to be something that I could support and I still cannot support it, because a person can be detained only for the purpose of removal and only for a reasonable period for that purpose. There is nothing exceptional about it taking longer than 28 days to remove a person who has been detained for immigration reasons. There has to be discussion with the country to which the individual will be removed and persons being removed often do not co-operate with their removal. There is nothing exceptional about it taking longer than 28 days. Of course, the individual concerned is also entitled at any time to require a judicial assessment of whether it is appropriate for them to continue to be detained for immigration purposes. I am pleased that the Government have moved to a four-month period and I think that is the right result.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support Motion A. I will confine myself to three comparatively brief points. First, as has been made plain, the Government have already moved from the earlier proposal of six months down to four. Yesterday, as those who have read the debate in the other place will know, there was barely a voice and no vote whatever against that proposal.

The noble Lord, Lord Ramsbotham, has few greater admirers than I in this Chamber but, as I suggested earlier, his amendment goes altogether too far. One defect is that it is internally inconsistent. I mentioned this on Report but did not think it necessary to do so in the last round of ping-pong, though I rather regret that now. On its face, it refers in new subsection (1) to detention under any of the relevant powers. These are defined in new subsection (6) and include two dealing with detention pending deportation. However, looking at new subsection (4) of Amendment 84, it does not apply in cases where the Secretary of State is determined that there will be deportation. This is an internal inconsistency.

I suggest that four months properly protects against any risk of what can seriously be called arbitrary detention. One must remember that it is a safeguard over and above the intrinsic ability of those who are detained to seek bail—a safeguard I acknowledge to be appropriate and necessary, not least in the case of those with mental health problems. The proposal in the amendment of the noble Lord, Lord Ramsbotham, that there should be exceptional circumstances to justify detention beyond 28 days, is unworkable. The Minister gave reasons and illustrations, as did the noble Lord, Lord Pannick.

A shorter period, as proposed by the noble Baroness, Lady Hamwee—of whom, again, I am a great admirer—is, frankly, impracticable. Tribunals are already hugely busy and overworked. They really must not be overwhelmed.

Immigration Bill

Lord Pannick Excerpts

Monday 21st March 2016 Lords Chamber

[The Lord Bishop of Chelmsford]

My Lords, I have two concerns in relation to this issue, to which I will speak briefly. First, in our prayers in this House and in homes across the country, we cry out to God that this terrible violence will cease and we look for any small contribution we can make to hasten its end. Secondly, we are determined that those inflicting such terrible suffering will be brought to justice before the International Criminal Court, where such atrocities are properly dealt with. There is, as we have heard, a growing consensus that the systematic violence of people operating in the name of Daesh is rightly described as genocidal. This is what people outside this House call it, whether they know or understand the legal definitions or not, and we need to be very mindful of what would be heard were we not to pass this amendment.

Legally, the matter turns on whether we are confronted by,

“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

I understand the caution of the Government and other experts about applying the word “genocide”. There are risks. Some worry that the strength and clarity of the legal definition of genocide could be somehow devalued if it is applied to such a complex set of conflicts as prevails in the countries involved. Some worry that the genocide label could encourage false understanding of the situation as conflict between different ethnic or religious groups. There is also the risk of removing Christians and members of other minorities from the area to a point where those minorities, with a long history and characteristic identity in that place, could become unviable. I smile at that—if not I would weep—because this is, of course, precisely what is happening at the moment. However, it is obviously something that we wish to avoid. Only last week, the right reverend Prelates the Bishops of Coventry, Southwark and Leeds visited these places and this was their primary concern.

However, we can live with those risks while trying to mitigate them. Our urgent prayer is for Christians, Yazidis and a variety of other identifiable groups against which the hatred of Daesh is directed, and, supremely, for each individual—each of them precious to God. Therefore, can the category of “genocidal acts” help to stop the killing and help to bring the perpetrators sooner to account for their crimes? Yes, I believe it can.

The role of the Supreme Court is a matter for those with expertise in legal and constitutional matters. However, I note the support of a number of distinguished jurists for applying the label of genocide. The ability of people in this category to submit asylum applications at British missions overseas offers a reasonable additional route, alongside the work of the UNHCR, in identifying and bringing for resettlement those at greatest risk.

The General Synod of the Church of England has declared that it wants the Government to work with the UNHCR to ensure that vulnerability to religiously motivated persecution is taken into account when determining who is received into Britain. It calls on the Government to work with international partners to help establish safe and legal routes for people to come to this country who are so at risk.

The force of this amendment, whatever the issues of detail, is simply that the word genocidal is not too strong for what is happening. The seriousness of the national and international response needs to take that into account.

Perhaps I may briefly quote a passage from scripture—not an obvious one on this occasion for this situation. I have always been very moved by what Jesus said after the miracle of the feeding of the 5,000. After they had all been fed, he said to the disciples: “Gather up the fragments. Let nothing be lost”. I believe that this amendment can help in a small way to address this situation, so that those who are most in danger of being lost could—maybe a few of them—be found.

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Alton, and other noble Lords who have spoken have made an overwhelming case that acts of genocide are being carried out by Daesh, and they have made an overwhelming case that it is shameful that Her Majesty’s Government are not prepared to say so. I cannot understand the basis on which Her Majesty’s Government assert that a judicial determination is required before they are able to say that genocide is occurring. I would be particularly grateful if the Minister, the noble and learned Lord, Lord Keen, were to explain why a judicial determination is required. Any such approach seems quite inconsistent with Article 8 of the 1948 genocide convention, which states:

“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide”.

It is implicit in that that any contracting state is going to form a view that acts of genocide are taking place and in the light of that to make a request. I can see no basis whatever for the Government’s policy.

I have much more difficulty with the substance of this amendment because it proceeds on what seems to be the incorrect premise that a judicial determination is required in relation to genocide. I agree with the noble Lord, Lord Alton, and others that a judicial determination is not required before Her Majesty’s Government can state what their position is.

In any event, I am concerned that the substance of the amendment confuses the law relating to genocide with the different subject of refugee status. The genocide convention is concerned with the bringing to justice of the perpetrators of genocide in criminal courts, either the local court or the International Criminal Court. It is not concerned with refugee status; it makes no mention of the subject. This is not a technicality. What the substance of the amendment seeks to do is impose some obligations—we heard that they may not be very extensive—on the diplomatic mission of the United Kingdom abroad to accept applications for refugee status. It is a fundamental principle of refugee law, for sensible and practical reasons, that an asylum claim cannot be made at a consulate or an embassy of the United Kingdom in another country.

So I am not myself keen on the substance of this amendment, but I repeat that I share the concerns about the position being adopted by Her Majesty’s Government and their refusal to state publicly and importantly that acts of genocide are being carried out. If the noble Lord, Lord Alton, decides to divide the House, he will have my support precisely because I oppose the Government’s general policy in this area.

Riot Compensation Bill

Lord Pannick Excerpts

Friday 26th February 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, I thank the noble Lord, Lord Trefgarne, for introducing this Bill, which is a welcome reform, so far as it goes, of a very odd area of English law. My interest in the subject derives from having argued a case in the Supreme Court last month on behalf of the London Mayor’s Office for Policing and Crime resulting from the 2011 riots. The issue was whether the 1886 Act, which this Bill would repeal, permits recovery for consequential losses to the property owner, such as loss of profits and loss of rent. Judgment in that case is awaited. Clause 8 would exclude almost all consequential loss, but I will say no more on that subject.

A bit of history might assist noble Lords. Statutory compensation for riot damages has its origins in the Riot Act 1714, which was enacted to address the widespread riots which occurred on the accession to the throne that year of George I. The 1714 Act made the “hundred”—that is, the local inhabitants—liable for property damage caused by persons who were, as the statute said, and as the 1886 Act repeats, “riotously and tumultuously assembled”. As the noble Lord mentioned, one merit of this Bill is that it will remove such antiquated language. The 1886 Act transferred the liability to local police authorities.

The 1714 Act is the origin of the phrase “reading the Riot Act”, because Section 1 required the local justice of the peace to approach the rioters, as the Act says,

“as near to them as he can safely come”,

and,

“with a loud voice command”,

that, in the words of the statutory proclamation, the King wished them to disperse. If they refused, under the Act, any officer of the law assisting the justice of the peace and other authorities would have no liability for “killing, maiming or hurting” any of the rioters.

The Act also made the local inhabitants liable for any damage to buildings caused by the rioters. The 18th century judgments of Lord Mansfield and other judges explained that the liability of the local inhabitants was designed to encourage them to take action to stop the rioting. That statutory liability has persisted even though, in 1886, the obligation to pay compensation was transferred from local inhabitants to police authorities, which need no inducement to take action against rioters.

The Bill perpetuates an anomaly, because there is no statutory right to compensation in the event of a natural disaster, such as flooding, or in the event of an epidemic. Other public bodies, such as hospitals, have a liability only if negligence can be proved. Under the riot compensation law, the police are liable to pay large sums of compensation whether or not they are at fault. That is particularly striking because the general common-law rule, which was confirmed by the Supreme Court last year in the case of Michael, is that the police generally owe no liability in negligence for failing to prevent serious crime, even if they are at fault. I represented the police forces in that case.

The anomaly is even more strange because the independent Kinghan review, which was conducted on behalf of the Home Office in 2013 to examine the application of the 1886 Act, found that there is no comparable statutory scheme in other countries. Indeed, the anomaly is even worse because the 1886 Act allows insurance companies to claim compensation for sums which they pay out, despite the fact that they have charged premiums to cover the risk. This Bill will perpetuate that right for insurance companies.

The Kinghan review found that many people were concerned that, without this statutory scheme, people might find it difficult to obtain insurance to cover riot damage in some parts of the country, but in this respect Kinghan proceeded on the basis of concern rather than any hard evidence. The Minister may be able to enlighten the House. Is there any hard evidence that this statutory scheme is actually required because people would be unable to obtain insurance against riot damages?

For all these reasons, I am doubtful that we should be perpetuating the legal anomaly of statutory compensation for riot damage. As the noble Lord, Lord Trefgarne, said, the Bill will limit the compensation to £l million per claimant, but should there be any special right to compensation at all in this area alone?

If Parliament is to retain this statutory scheme, we need to consider the details of its content, and there are some odd features about it. Since 1714, when this statutory scheme was first enacted, the compensation has been confined to property damage. The exclusion of any compensation for personal injuries caused by a rioter is anomalous but is understandable because, in practice, the victim can nowadays claim under the criminal injuries compensation scheme.

However, there is a very important arbitrary distinction in the 1886 Act which is maintained in this Bill in relation to property damage. The statutory compensation is confined to damage to real property—a house or other building—and to any personal property contained within that building. So I am not entitled under the 1886 Act, and I will not be entitled under the Bill, to compensation if a rioter damages my property on the highway. If a rioter comes into my house and smashes my computer, I will be entitled to compensation, but if I am walking home along my street and a rioter grabs and smashes my computer, I have no right to compensation under the Bill. I ask the Minister: why is that?

The Bill extends liability a little way: it will allow for compensation claims for some vehicles on the highway and it will allow compensation for property on land being used for the purposes of a business, but what is the justification for otherwise distinguishing between damage to property done in a building and damage done on the highway? I cannot think of any rationale for such a distinction. There is the same riotous conduct and the same damage. The only possible rationale is a wish to limit the scope of compensation, but the distinction is simply perverse.

I want to mention three other provisions in the Bill. I welcome Clause 1(6) which will exclude compensation for a riot in a prison or similar facility. This provision is necessary to reverse the effect of the decision of the Court of Appeal in the case of Yarl’s Wood Immigration Ltd. The claimants, who maintained and operated an immigration detention centre under contract with the Home Office, applied for compensation under the 1886 Act after it was destroyed in a riot. The Court of Appeal said that in principle compensation was available under the 1886 Act. The Bill is right to remove any such liability. If a company is responsible for a prison or other secure unit, it should bear responsibility for preventing a riot, and it should not be able to claim compensation if a riot occurs on its watch.

I am concerned about Clause 8(3), which will allow the Secretary of State power to make regulations setting out factors to be taken into account in deciding on claims. These matters should, in principle, be in primary legislation so we can debate them and, if necessary, amend them. I appreciate that detail can be in regulations, but surely the principles should be set out in primary legislation. The 1886 Act is more detailed in this respect. Section 4 expressly states some of the factors to be taken into account: any failure by the claimant to take reasonable precautions to protect their property and any provocation offered by them to the rioters.

Finally, I want to mention Clause 9, which will allow a claimant who is dissatisfied with the award of compensation to have both a right of review, which I understand to mean an internal appeal, and a right to appeal, which I understand to mean a right to take the case to court. Again, the detail is to be left to regulations to be made by the Secretary of State. A point of principle arises. I do not see why a claimant should enjoy a de novo appeal right to a court. The decision on the compensation claim is an administrative decision by a public body, and if the claimant is aggrieved by that decision after a review they should be left to their remedy by way of judicial review requiring them to show that the claim has been assessed by an unfair procedure or in breach of the requirements of the statute or in some arbitrary manner.

I hope at least some of these comments are of value to the noble Lord, Lord Trefgarne, and to the Minister.

Draft Investigatory Powers Bill

Lord Pannick Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Bates]

That is one of the reasons why we have put in place a much stronger, clearer and well-resourced investigatory powers commissioner. That will also give an opportunity for cases to be brought to the Investigatory Powers Tribunal. There will be more transparency and openness there for people to take advantage of if they feel that we have got the decision wrong.

[Lord Pannick (CB)]

Can I press the Minister on what the Government intend by judicial authorisation? The Statement that the Minister repeated says that,

“in future, the warrant will not come into force until it has been formally approved by a judge”.

However, in Clause 19 and many other places, the Bill speaks of a judicial review test, which, as has already been explained, is a matter of assessing reasonableness and the formality of procedures. The real question is whether the Government intend that the judge will have the power to countermand the initial decision of the Secretary of State if the judge considers that the warrant is either unnecessary or disproportionate.

[Lord Bates]

We have stated that there is a double lock, and it is just that. Without both the judge and the Secretary of State giving their approval, it simply cannot happen. Some details are being published today in terms of draft codes of practice, and more information will be fleshed out, in co-operation with the Ministry of Justice, the Lord Chief Justice and, crucially of course, the judicial commissioners themselves, as to how this process will work in an effective and speedy way.

Counter-Terrorism and Security Bill

Lord Pannick Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Judd]

My Lords, not for the first time in my political life, I applauded every word of the noble Lord, Lord Deben. I hope that that does not embarrass him. Thank God for what he said, and I hope his noble friend the Minister listened, because it was a very powerful argument. In talking about his noble friend listening, I want to put on the record that I believe that the Minister we have leading for the Government on this debate does listen. What he has put forward today is an indication of how he listens and how he is prepared to argue in government for what he has heard. I beg him to accept that those of us who want to encourage him to persuade his friends to go still further are not doing this with any sense of hostility but are trying to support him in the pathway he has now chosen to take towards the position that the rest of us find ourselves in.

I hope that I will be forgiven if, just for a moment, I introduce an international perspective of a different kind in this debate. I am sure that I was not alone this morning as I heard and studied the reports of the latest depravity by ISIS. I almost despaired—if humankind is capable of this, what can happen? But then I found myself turning back very strongly to the conviction which I have had, probably tentatively, from a young age that peace, understanding, stability and decency are built in the minds of men and women. It is not therefore a cliché to say that we are in a battle for hearts and minds—we are. Central to that battle for hearts and minds—the powerhouse of it—is higher education and the universities. That is why the arguments that we have been hearing from all sides today have been so important.

I sometimes allow a little element of cynicism to creep into my mind and think that some of the proposals that come forward, not least what originally came forward from the Government here, might almost have been scripted by the highly intelligent, ruthless leaders of movements such as ISIS. This was almost beginning to do exactly what they want us to do in beginning to undermine and limit those things which are central to the fabric of everything that we say we believe in.

From that standpoint, I hope that the Government will see the profound dangers of a gigantic own goal and of a victory for the ruthless extremists. This is the time when we have to make absolutely clear that we stand for something totally different. The central powerhouse of that is thought, analysis and creative intelligence, and the workplace for that is the universities of our society. It is not just what course should be done, what is acceptable or what lecture is not acceptable; it is the whole atmosphere and ethos of the place. Anything that undermines that destroys something that is an absolute lodestar of the things we say we believe in.

[Lord Pannick (CB)]

My Lords, I added my name to Amendment 14A, to which the noble Lord, Lord Macdonald of River Glaven, spoke. I very much welcome Amendment 15D, tabled by the Minister, which goes a very long way to addressing the concerns that were expressed around the House in Committee and have been expressed again here today. It puts on the face of the Bill that these new Prevent duties for universities are to be read and understood alongside their duties to protect freedom of speech—and, indeed, that particular regard must be given to free speech.

Some noble Lords have expressed concern today about a lack of clarity, but free speech is not absolute, even in universities. It has to be balanced against other considerations; the balance must depend on the particular circumstances, and the guidance will be of particular importance in this regard. All the more welcome, therefore, is the amendment that we will discuss in a later group that ensures that the guidance must be approved by a positive resolution of both Houses.

I most respectfully do not agree with my former tutor, the noble Baroness, Lady Deech, that Amendment 15D will make no difference to the law of the land. I would expect the courts to say, reading the new clause as part of the Bill, that the Part 5 duties must not unreasonably or unnecessarily restrict or impede the performance of the universities’ core function, which is and remains to promote academic inquiry.

I have two questions for the Minister concerning his Amendment 15D. The first arises out of the fact that the amendment tabled by the noble Lord, Lord Macdonald, and me refers both to freedom of expression and academic freedom. The Minister’s amendment does not mention academic freedom. Can the Minister confirm—I hope he can give a positive response to this—that it is unnecessary expressly to mention academic freedom in his amendment, because in the context of a university, academic freedom is implicit in the very notion of securing freedom of expression? That would be my understanding, but I would very much welcome his reassurance on that.

Secondly, there are limits to the scope of the Minister’s Amendment 15D, because it incorporates the duty of freedom of expression in relation to three aspects of Part 5 of the Bill. New subsection (2) applies freedom of expression to the duty of universities under Clause 25(1). New subsection (3) applies this freedom of expression duty to the role of the Secretary of the State in issuing guidance under Clause 28 and the role of the Secretary of State when considering whether to issue directions under Clause 29.

However, there are two important aspects of the Part 5 scheme to which this new clause on freedom of expression does not appear to apply. One is the duty of universities under Clause 28(2) to “have regard” to the guidance, and the other concerns the duties of monitoring authorities under Clause 30. The freedom of expression duty applies to neither of those important matters, and I am concerned about that. So this is my second question. Will the Minister tell us—he might be unable or unwilling to answer today, but I would very much welcome an answer before Third Reading on Monday—whether there is a reason why his new freedom of expression clause, which I welcome, does not apply to Clause 28(2), the duty of universities to have regard to the guidance, or Clause 30, the duty of monitoring authorities? Would he please look at the matter before Third Reading to consider whether it might be better to include those matters also within this new provision?

[Baroness Brinton]

I have attached my name to Amendment 14C, and rather than repeat the points made by my noble friend Lady Sharp of Guildford, I will say just that I endorse them. I will make a comment and then ask my noble friend the Minister a question on his Amendment 15D—which, as many other noble Lords have said this evening, takes us some way forward. I am grateful to the Minister and his civil servants for coming back with a proposal that means that we can actually discuss some of the boundaries—and therein lies my question. This relates to guidance: in particular, we discussed in Committee the revisions of the guidance to some of the very specific duties about checking presentations and making sure that people had been trained in specified authorities.

I have a more fundamental question about paragraph 50 in the current guidance, which I do not believe was proposed to be amended. It says that,

“universities must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism”.

It is the phrase, “their responsibility to exclude”, that I want to focus on.

I am not sure that the qualifying statement,

“that support or are conducive to terrorism”,

is sufficiently clear as to provide reassurance. It is already illegal to directly or indirectly encourage others to commit terrorist acts, and universities are obliged to exclude those who do so. Beyond this, it is not clear which views should be understood to be conducive to terrorism. Non-violent extremism is not generally unlawful, and the Prevent strategy defines extremism as,

“vocal or active opposition to fundamental British values”.

These values and concepts include those that are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.

In a letter to the Times on Monday, my right honourable friend the Secretary of State for Business, Innovation and Skills stated that the Bill,

“addresses terrorism and not extremism”,

which he described as, “a highly subjective concept”. I hope that the Minister will be able to confirm that the Secretary of State’s comments will be fully reflected in future versions of the guidance; and that universities will not be required to exclude from campuses those who, while acting within the law, advocate views that are classed as extreme.

Counter-Terrorism and Security Bill

Lord Pannick Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, this would be a safeguard without substance. What is required here is that a person is given a summary of the reasons for suspicion. The noble Baronesses who have spoken in support of the amendment have said that the summary obviously could not include the full intelligence, and quite rightly so. Presumably, the summary of the reasons will be, “There may be intelligence which suggests that”, which is hardly a reason that will satisfy anyone and seems essentially to be pointless. Surely the fact that someone is told that this is being done under Schedule 1 to the Counter-Terrorism and Security Act is all the summary of reasons that will ever be given. Dressing it up by saying, “You are being provided with a summary of the reasons: namely, that you are thought to be a person to whom Schedule 1 to the Counter-Terrorism and Security Act applies”, does not provide much of a safeguard. Is this not just gesture politics?

[Lord Pannick (CB)]

My Lords, this is not gesture politics. There are many areas of the law where an obligation to provide a gist of the reason is imposed precisely in order to try to achieve a compromise between the duty of fairness and the demands of security. In these areas of the law, providing a gist does give individuals the substance of the allegations against them. In this context, the constable can exercise the relevant power only if he or she has reasonable grounds to suspect. In general, the constable must be able to provide at the least a summary of the reasons why they have reasonable grounds.

I understand the point that there may be security reasons why the constable is either unable, or is concerned that he or she may be unable, to provide even a summary. I wonder whether the Minister might consider, prior to Third Reading next week, coming back with a revised amendment that would impose the obligation set out in the amendment moved by the noble Baroness, Lady Hamwee, but subject to an exception—if the constable believes that there are or may be security reasons not to provide the summary. In the context of the exercise of a power as serious in its implications as this—that is, seizing someone’s passport—surely there ought to be an obligation, at the time when the power is exercised, to tell the individual why it is being exercised.

[Baroness Butler-Sloss (CB)]

My Lords, following on from what the noble Lord, Lord Pannick, has just said, it may be possible to add to the amendment the words, “or in the case of emergency”.

Counter-Terrorism and Security Bill

Lord Pannick Excerpts

Wednesday 28th January 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I shall start by mentioning that I, too, serve on the Joint Committee on Human Rights—I am afraid that a whole flurry of us are getting involved in this debate. There certainly was a real consensus within the Joint Committee that applying this duty to universities would be detrimental to freedom of speech. We have been most concerned about it. One of the things that I think we have all now acknowledged is that freedom of speech is an absolute value to higher education. To interfere with that or to create a chilling effect is something that we should step back from. I endorse entirely all that has been said by others on this subject and want to add one or two things.

I have acted for a number of people involved in failure to fulfil their responsibilities in the criminal field, where they have not informed on those who seemed to be involved in terrorist activity. The duty to inform is real. The universities are very conscious of it, as are the student bodies. The concern that seems to be at the base of this—and which the public would want to see being at the base of this—is that, if you were to hear that people are planning and plotting things, there is a responsibility to do something about it. That already exists in law. It is the further steps that are involved in this that worry people.

Like the noble Lord, Lord Macdonald, and the noble Baroness, Lady Brinton, and others, I am involved in higher education, and I have been for some time. I too am the head of an Oxford college. Oxford University senior administrators have written to heads of house, such as Lord Macdonald and me, expressing their concern about this part of the legislation. This is partly because, as the noble Baroness, Lady Brinton, has said, it is almost impossible for us to oversee it sensibly. For example, in Oxford it would be hard to count the number of meetings that take place in any one week across the college structure and the whole of the university. I cannot imagine what the numbers might be. The noble Lord, Lord Macdonald, and I talked about the possibility of doing a review to see what the number was. We are certainly talking about hundreds. The same would be true in Cambridge and in universities around the country. The autonomy of student unions to invite their speakers quite independently of the governance of the university must not be forgotten.

I speak from my experience as a lawyer who has acted in the criminal courts in this field during the Irish Troubles, but most particularly in recent years around the recent phase of terrorism. I acted in the case that came to be known as the Crevice trial; the fertiliser bomb plot. I acted in the transatlantic bomb plot where seven young men were put on trial for trying to blow up aeroplanes. I have acted for a number of the different wives of men involved in terrorism in relation to their duty to report. I have acted for a boy who was groomed while he was on the internet in his bedroom in his parents’ house. I have acted for those who were involved in trying to dispose of evidence in the aftermath of the 7/7 bombings in relation to 27 July 2005. So I have acted in a whole series of these cases and I can honestly say that my experience is that these are not people who were radicalised in universities.

Radicalisation does not go on in universities. By and large I am talking about young men and it is about friendships and networks of friendship where people learn from each other and pass books and material to each other. It is not about closing down what happens in universities. It is really about what happens in our communities. So the work that is already going on in communities is probably the stuff that needs to be strengthened. All I urge is take a look at the real evidence of this. It is not enough to tick a box and say, “Some of these boys went to university, some of them were on access courses”. Many of our young around the country are going to university, but these boys were not radicalised because they were university students, in the way in which we think of university students. I see noble Lords nodding. That really has not been the case.

I go back to my concern about the chilling effect, which has been described by others. There is also the deterioration of trust effect, which is very important in the relationships between those who teach and those who learn. The other thing is that I spend time with the students in my college. I have them in regularly to gatherings. I do a regular meeting with sets of 12 at a time. We have discussions; they talk about all these things that are being described, some of them by the noble Lord, Lord Macdonald. They debate things such as, “Is democracy so wonderful, when it is bought wholesale by donations to political parties and where the small people do not get a voice? Is it right that religion can be denigrated?”. They want to debate things such as, “What is the point at which people are entitled to take up arms?”. I remember when I was president of SOAS, the School of Oriental and African Studies, there would be incredibly vital debates and arguments about the circumstances in which someone was entitled, as Mandela was in his time, to take up arms against the state. When is it appropriate? That is how young people learn about the nature of our society. It is where they learn and hear the counter arguments to some of the things that they feel seem so obvious to them.

This is not, by and large, where your radicalised young person is giving voice to his views. That is happening in the café down the road. It is happening in the kebab shop. It is happening in people’s rooms, but it is not happening in the universities in the way that somehow is imagined by this part of the legislation. I urge against it and ask that the bit about universities is taken out, because we are interfering with one of the most important freedoms that should be protected in our society.

[Lord Pannick (CB)]

My Lords, Oxford is well represented today. I declare an interest as a fellow of All Souls College. I find this a genuinely difficult issue. I am supportive of the Government’s general objectives in Part 5; far more supportive, I think, than some of the speakers who have addressed noble Lords this afternoon, particularly in the earlier debate.

It seems to me that the starting point has to be that there is a disturbingly large number of people out there who are prepared to take violent action for ideological and religious reasons. There is an even more disturbingly large number of people who are prepared to encourage or to condone such violence. For me, the most shocking part of the appalling events in Paris were not the attacks on the journalists and the kosher supermarket by deranged Islamists, it was that a minute’s silence for the victims was unenforceable in many French schools, because of sympathy for the murderers and their supposed cause from students and, presumably, their families. This demonstrates, I think, that in France there is an alarming failure to understand the basic principles of a liberal democracy; a democracy which protects the freedom of religion—rightly so—of those who refuse to recognise the basic rights of others.

My starting point is that the Government are rightly determined to prevent such developments here; developments which breed religion-inspired violence. Having said that, I share the concerns which have been expressed this afternoon about the impact of these provisions on freedom of expression and academic freedom in universities. My concern is very similar to that of the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady Kennedy. It is that the duty which the Bill will impose is very difficult to reconcile with the very idea of a university whose primary role is to encourage academic debate and dissent. I think that a code which can be enforced by legally binding directions is far too blunt an instrument in the context of a lecture hall or a seminar room. If you try to wear a policeman’s hat and an academic gown at the same time, you are unlikely, I think, to perform either task adequately.

The Minister’s helpful letter to noble Lords on this issue makes the point that academic freedom is not absolute, even in a university. The Minister is absolutely right: the law already restrains freedom of speech, in universities as elsewhere, through the law of defamation, restrictions on threatening or abusive words or behaviour, and prohibitions on support for proscribed organisations. Universities have no exemption in that context, but this Bill would impose duties that are far more extensive and far more destructive of basic academic freedom than anything which is contained in current law.

I would prefer universities to be excluded from Part 5, but would be much reassured on this difficult subject if the Government would support Amendment 105, in the name of the noble Baronesses, Lady Lister of Burtersett, Lady O’Loan, Lady Buscombe and Lady Sharp of Guildford, or something like it. Their amendment would write into the Bill the protection for freedom of speech currently contained, as your Lordships have heard, in Section 43(1) of the Education (No. 2) Act 1986. I note that, in the Minister’s letter to noble Lords, he says that the duty under the Bill,

“is in no way designed to cut across the importance of free and open debate”,

particularly in universities. Good, I am very pleased to hear that. But then let the Bill say so expressly, to provide reassurance to the many good people in universities and elsewhere who are very concerned, and rightly so, about this issue.

[Lord Hope of Craighead (CB)]

My Lords, I entirely support the points that have been made by all noble Lords who have spoken in favour of these amendments. I have a rather particular point to make about wording, which I do as a former chancellor of the University of Strathclyde, which of course is in Scotland.

Clause 41(1) makes it clear that Part 5 of the Bill applies to Scotland as well as to England and Wales—it does not apply to Northern Ireland, as the noble Baroness, Lady O’Loan, said. However, this gives rise to a problem about drafting. One has to be absolutely sure when one refers to legislation—as, for example, Amendment 105 does, along with Amendment 108 and others—that the legislation referred to applies to Scotland as well as to England and Wales. The problem with Amendment 105—which I entirely support in principle—is that Section 43(1) of the Education (No. 2) Act 1986 applies only to England and Wales, and does not apply to Scotland. The right to freedom of speech, and all the points that have been made in favour of the exercise of freedom of speech and about the difficulties of enforcing measures of the kind that we are talking about and so on and so forth, have just as much power and effect north of the border as they do in England and Wales. If Amendment 105 were to be agreed with the form of words which it has at the moment, it would create difficulties north of the border. That could be cured very easily by simply taking out the reference to,

“the duty in section 43(1)”,

of the 1986 Act, and substituting the words “the need to ensure that freedom of speech is maintained”. Freedom of speech in Scotland is deeply ingrained in the law of the country by, for example, Article 10 of the European Convention on Human Rights. One of the features of the 1986 Act is that it was passed some years before the Human Rights Act 1998 was enacted. Nowadays, you look to the convention rights in the Human Rights Act to see whether you have a right that you wish to assert. It is certainly true that Section 43 goes rather further and is quite detailed about the nature of the duty, but I have searched as best I can through the legislation in Scotland and, so far as I can see, there is no equivalent provision in either the education Acts or the university Acts in Scotland, which cover the same field.

--- Later in debate ---

I hope that your Lordships will see that, far from encroaching on the ability of colleges and universities to ensure academic freedom, the Prevent duty will sit comfortably alongside that duty and others. It will ensure that all these institutions take seriously their obligations to ensure that people are not radicalised on campus.

[Lord Pannick]

If the intention is that the Prevent duty should, as the Minister just told the House, sit alongside academic freedom and freedom of expression in universities, why not say so on the face of the Bill, so that it is absolutely clear?

[Lord Bates]

That is in my next paragraph, if the noble Lord will let me come to it.

However, I can equally understand the trepidation of many in your Lordships’ House, and I have heard the strength of feeling on this matter. On that basis, I will commit to considering this matter further, and to discussing it with my ministerial colleagues, before Report, in order to identify whether it would be possible to provide some additional comfort to noble Lords, and to the education sector itself.

This has been a very wide debate, with some 20 speakers. Many have made very specific points and asked very specific questions. I am conscious that this is the second group of amendments within six weeks to cover Prevent, but—

--- Later in debate ---

Moved by

[Lord Pannick]

118D: Before Clause 36, insert the following new Clause—
“Independent reviewer of terrorism legislation
In section 36 of the Terrorism Act 2006, for subsection (1) substitute—“(1) The Secretary of State must appoint a person to review and report on the operation, effectiveness and implications of—
(a) counter-terrorism legislation; and (b) any other legislation or power to the extent that they are applied for counter-terrorist purposes.(1A) “Counter-terrorism legislation” in subsection (1) means—
(a) the terrorism Act 2000,(b) the Anti-terrorism, Crime and Security Act 2001,(c) Part 1 of the Terrorism Act 2006,(d) the Counter-Terrorism Act 2008,(e) the Terrorist Asset-Freezing Act 2010,(f) the Terrorism Prevention and Investigation Measures Act 2011,(g) Part 2 of the Justice and Security Act 2013, and(h) Parts 1 and 2 of the Counter-Terrorism and Security Act 2015.””

[Lord Pannick]

My Lords, this amendment stands in my name—

[Lord Bates]

I apologise to the Committee and to the noble Lord, but I thought that it might be helpful to him if I put on the record some comments on his amendment, which the Government have carefully considered. I hope that that might be helpful to the noble Lord.

[Lord Pannick]

I move this amendment formally.

[Lord Bates]

My Lords, it is getting late. I am very grateful to the noble Lord for moving this amendment and for raising this very important issue.

The two amendments before us are slightly different in wording but are designed for the same purpose. Both amendments would insert a new clause into the Bill which would amend the statutory remit of the Independent Reviewer of Terrorism Legislation and, in some respects, would amend the reporting arrangements for those Acts falling within his remit.

I am aware that the essence of these amendments reflects a recommendation made by David Anderson in his last annual report on the operation of the Terrorism Acts, and echoed by the Joint Committee on Human Rights in its recent report on the Bill. It is, however, right that the Government think carefully before making what would be very significant changes to a long-standing and highly effective oversight role. The primary purpose of the independent reviewer role is to provide assurance to the public on the operation of UK counterterrorism legislation. It is important that we do not dilute this core function and that there is clarity about what is subject to the independent reviewer’s oversight.

Nevertheless, I can see that there is some force to the argument that it is a little perverse that while the independent reviewer is able, and obliged, to look at certain Acts of counterterrorism legislation, other equally relevant pieces of counterterrorism legislation are outside his remit. The Government have reflected on this issue, and will continue to do so in the light of this evening’s debate, to consider whether it might be possible to make some changes on Report to address this concern. Were we to expand the independent reviewer’s remit, it would, of course, raise questions about the capacity of the independent reviewer. Even someone with such a voracious appetite for work as David Anderson has limits. In part, the Privacy and Civil Liberties Board, which we are coming on to, is designed to increase the support and capacity of the independent reviewer. I will give further thought to whether it would be appropriate to give him greater flexibility to set his own work programme and concentrate on those areas which he believes are most deserving of scrutiny or most topical.

I give your Lordships a very clear assurance that the Government will consider these points extremely carefully, and very urgently, and I hope that we may be able to find some way to meet the points which these amendments seek to address. I invite the noble Lord to reflect on those comments.

[Lord Pannick]

I am very grateful to the noble Lord. That is extremely helpful. Of course I have no intention of pressing the amendment. I look forward to hearing what he says next week on Report. I ask him to reflect not only on the recommendation of the Joint Committee that the remit of the independent reviewer should be expanded but also, as the Minister mentioned, the other part of the Joint Committee recommendation—paragraph 7.8 of their report—that the Government should make available to the independent reviewer resources necessary to perform his task effectively. In particular, David Anderson has explained that it would help considerably if he were assisted by a security-cleared junior counsel. That seems a very good idea to me. I do not think that the provision of such assistance would need statutory authority, but I hope that the Minister can reflect on that. Other noble Lords may wish to intervene in relation to this debate.

[Baroness Hamwee]

My Lords, I am glad to hear what the Minister has said. Reference has been made to the Work Programme. My amendment extended beyond the remit to the question of the frequency of reporting, which is a point that the current independent reviewer raised. Less frequent reporting on some matters will free up time to focus on others, responding of course to the current situation. There is also the question of specific statutory powers for access to classified information and to gather information. He has said that he has not had a problem but that he feels that it would be appropriate for the matter to be dealt with in statute. I wanted to ask that those points be among those that the Government are considering and, like others, I look forward to seeing the amendment on Report.

[Lord Carlile of Berriew]

My Lords, I will add a few words of support for what has been said by the noble Lord, Lord Pannick, and my noble friend. I feel very grateful to my noble friend the Minister for taking the initiative in this group of amendments. David Anderson has set out very clearly and correctly the additional support that he needs and the programme of work that it would be in the public interest to have in his hands. The Minister seems to agree, provisionally at least, with David Anderson’s representations as articulated by the noble Lord, Lord Pannick, in particular, and I feel that we can now await next week with some confidence.

[Lord Pannick]

My Lords, I beg leave to withdraw the amendment.

Amendment 118D withdrawn.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.

Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,

“particular things that the board may or must do”.

This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.

I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.

[Lord Pannick]

From a modest height, I am very concerned that Clause 36 will undermine the essential role of the independent reviewer. The current holder of the post, David Anderson, and his predecessor, the noble Lord, Lord Carlile of Berriew, have achieved a remarkable degree of success. They have commanded the confidence of the public and of the NGOs that have expertise in this area. They have also commanded the confidence of the intelligence services and the Government. To command the confidence and, indeed, the respect of all these different constituencies is a deeply impressive achievement. However, that confidence and respect have necessarily depended on the personal independence, integrity and judgment of those who have performed this role. The job cannot be done by a committee. The clause is silent on whether the independent reviewer will share all the secret information with the board. If so, there is a real danger that he will not, in practice, be given such free access to confidential information in the future. If he is not to share the information with the board, I cannot see how it can do much to advise and assist him.

My other concern is that Mr Anderson, as has already been mentioned, has limited time to devote to the primary task of reviewing counterterrorism legislation. The very last thing that he needs is a committee structure that will inevitably use up his finite time which would be far better spent on the front line on essential activities of reviewing the operation of the relevant legislation. For all the reasons that have already been given and for these reasons, Clause 36, certainly in its current form, is a very bad idea. I hope that the Government will fundamentally reconsider it in the limited time before Report next Wednesday.

[Lord Carlile of Berriew]

My Lords, I absolutely agree with what has just been said by the noble Lord, Lord Pannick, and the reasoning behind what he said. However, I recognise that the Government are determined to pass something like Clause 36. In looking at Clause 36(1), if there is to be some kind of board to provide advice and assistance to the Independent Reviewer of Terrorism Legislation, then so be it. But the only part of Clause 36 that has been really thought through is subsection (1), which merely gives the power to establish the board. It is important to be fair to the Minister and to recognise that the Government are not setting up the board by this provision, which enables the creation of regulations only if such regulations are made to set up the board.

I have a few issues that need to briefly be considered before we deal with the principal question of whether the clause should remain in its present form. I absolutely agree with the noble Baroness, Lady Smith, that the title is inappropriate. If the title were appropriate, Mr Anderson, surely, would be retitled the Privacy and Civil Liberties Reviewer. But of course Mr Anderson would not accept that because that is not what he is. It is completely illogical to have an Independent Reviewer of Terrorism Legislation and a board assisting him entitled the Privacy and Civil Liberties Board, whose prime aims are neither privacy nor civil liberties. I beseech the Minister, who is a sensible, realistic and charming man—if I may say so—to recognise that what is in the tin should be described accurately on the tin. Many who are involved in this field of work have been perplexed by this title; apparently it has some attraction to advertising and branding people.

I would like to hear my noble friend say that yes, the Government do want to have a board, albeit possibly under another title, and that it can be formed—that is, regulations could form it. But I ask my noble friend to recognise that a great deal of work is still to be done. That work cannot be done while this Bill is before this Session of Parliament. I ask him to recognise that the work will take many months and possibly even longer. It may be that the regulations will never be made because we have not yet reached the point at which we are ready to describe a board that would have some utility in the life of the Independent Reviewer of Terrorism Legislation.

Perhaps I may close my evening here with a couple of words of Latin. I would say to my noble friend: please, festina lente.

Child Abuse Inquiry

Lord Pannick Excerpts

Thursday 22nd January 2015 Lords Chamber

[Lord Bates]

On the last point, of course there is nothing in the delays which we are experiencing with the inquiry which should for one moment stop the prosecution or investigation of these heinous crimes. That should not occur. We now recognise that all three options must have a statutory element, and without doubt the inquiry will have that. Regarding the funding which is available, I have mentioned some special funding. We are also working with the Department of Health and the Department for Communities and Local Government to see what additional support can be provided, particularly for those who will be invited to come forward to give evidence to the inquiry.

[Lord Pannick (CB)]

My Lords, have the Government considered that the difficulty in getting this inquiry off the ground is due to its size? Surely nobody could sensibly conduct an inquiry with terms of reference requiring consideration of the extent to which state and non-state institutions have failed in their duty of care since 1970. That is an impossible task, and it is surely not surprising that no competent person is able to perform it. I must say to the Minister that if an inquiry of that sort ever did start, the inevitable delays in conducting it would make Sir John Chilcot look like a chairman in a hurry.

[Lord Bates]

I very much hope that that is not the case. I have to say that in most cases the pressure that we have been under was to extend the terms of reference still wider. I totally understand the noble Lord’s point that the inquiry needs to be sharp and focused, and to get to the heart of the matter. The chair who is appointed to the panel therefore has an incredible responsibility to provide that clarity of focus and speed of deliberation so that we get the answers quickly.