Trusts (Capital and Income) Bill [HL]

Lord Phillips of Sudbury Excerpts

Wednesday 25th April 2012 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I endorse the commendation of my noble friend Lord Henley for the work of the Law Commission. It is one of the unsung heroes of the forest of the law and, within it, it is a true forester.

It is particularly warming to know that the report upon which this Bill is based is but three years’ old, which, in terms of this kind of legal reformation, is but a twinkling of an eye. Indeed, the Minister said that the reform vis-à-vis the fruits of demergers was partly in the Bill to rectify the fact that as the law presently stands only indirect mergers are, so to speak, saved, and now direct mergers will be in the more flexible regime.

It is perhaps amusing to remind the Committee that the ruling to which the Minister referred which enabled indirect mergers to result in the apportionments that the court decided was given in the case of Bouch and Sproule, which was no less than 125 years ago. So spreading the benignity of Bouch and Sproule has taken rather than longer than some of us would have wished.

I also cannot resist a nostalgic view of this debate. The Minister talked of his time at the Bar. My earliest days in the law were spent studying trust accounts in 1958. The very cases to which he referred—Howe v Earl of Dartmouth, Allhusen v Whittell and Re the Earl of Chesterfield’s Trusts—are names that adorn the wall of my lavatory. Incidentally, I think Howe was a predecessor of our dear friend, the noble Earl, Lord Howe. They are some of the most complex, arcane, time-wasting and lawyer-infested rules that still apply in our world. Therefore, this is a happy day and I have little to say apart from expressing happiness, except for two points.

The first relates to the drafting of Clause 3. As the Minister clearly described, this provision gives trustees the power to compensate income beneficiaries when there is a direct demerger. I am well briefed on this point by the Law Society, which has a committee to look at such things that is comprised of horny-handed practitioners. They and I feel that subsections (1), (2) and (3) could be more clearly drafted. The particular point that exercises us is that exactly what the trustees are empowered to do is not as clear as it could be. That is, what is the nature and extent of their discretion? Is it an absolute or a qualified discretion? The language of the three subsections states, for example, “the trustees are satisfied”, “the trustees may” and “the trustees consider”.

It is perhaps unfair to ask the Minister to comment on these matters instantly, but after today I hope we will at least consider the potential improvement of three quite difficult subsections. We do not want to put trustees—who, let us not forget, are nearly all volunteer trustees—into a position whereby some aggressive beneficiary or potential beneficiary could try to sue them over the way in which they have exercised the power given to them by this clause.

My second point concerns the Charity Commission, which is extremely useful. At present, for many charities that have permanent endowment—which more have than some realise—it is a real palaver to apply to the commission for an order, and for that order to be considered, made and executed. A great deal of time, effort and expense is wasted because of that state of affairs. It is therefore extremely beneficial and has no down side at all that the Bill will allow the commission—if it so wishes, as I am sure it will—to make regulations that will enable all charities in the future to make provision vis-à-vis endowed property, without applying formally for an order from the commission.

With those few remarks, I thank the Government and all those involved for bringing forward an arcane but none the less very important and practical set of proposals that will make more of a difference than many realise.

--- Later in debate ---

[Lord Beecham]

My Lords, I join other noble Lords in congratulating the Minister on the clarity of his exposition of this intrinsically complex area, and in congratulating the Law Commission on producing the report. As the Minister reminded us, the process began eight years ago, so it has not quite reached the proportions of Jarndyce v Jarndyce. The commission has certainly done a thorough job.

My acquaintance with the rules of apportionment began with my law degree and effectively ended with the solicitor’s final examinations to which the noble Lord, Lord Phillips, referred, save that I learnt to take the precaution of ensuring that the rules were excluded from any will I subsequently drafted. Of course, that will now no longer be necessary. It will be a case of opting in rather than opting out, for which the commission and the Government should certainly take credit.

This afternoon I find myself visited by a slight sense of déjà vu. Many years ago I found myself acting in a divorce case and waiting for my case to be called on behalf of my petitioning client. I sat next to the counsel in the preceding case, a delightful if somewhat eccentric individual. For the avoidance of doubt, it was not the Minister on that occasion. At one point counsel turned to me and said, “Mr Beecham, where is the petition?”. I had to reply, “I am not instructing you”, to which he replied, “I know, I know, but where is the petition?”. Around three weeks ago, my noble friend Lord Bach said to me, “You are to be in charge of this Bill”. It was a visitation that was quite unlooked for. Nevertheless, I am here today to represent the Opposition on this matter and to welcome the simplification that the Bill embodies, in relation to both the rules of apportionment and, in particular, the position in respect of charities and the question of total return. I declare an interest as a trustee of the Trusthouse Charitable Foundation, which already operates a total return policy.

The noble Lord, Lord Phillips, referred to the Law Society briefing, for which I am very grateful. The Law Society is a body to which President Kennedy’s memorable injunction is often thought by solicitors to apply: “Ask not what the Law Society can do for you, but what you can do for the Law Society”. On this occasion, the Law Society has done us all a service in a briefing that contains the recommendations that the noble Lord, Lord Phillips, referred to in respect of Clause 3, where it suggests a new subsection and some clarification. I hope that can be shared with the Minister following this Second Reading, if he has not yet seen those proposals. They seem to make sense in exactly the way that the noble Lord, Lord Phillips described.

Other of your Lordships have made points particularly in relation to the position of charities and, in the case of the noble Lord, Lord Hodgson, in respect of cathedrals. Those matters seem to be worth pursuing. I had the same question in my mind as the noble Lord, Lord Higgins, about whether it is necessary to include a reference to existing trusts in the Bill. That is a matter that I am not qualified to make a judgment about, but it might usefully be considered, because if it is not currently possible for existing trusts to modify the rules then it would seem that they ought to be given that opportunity. They would not have to take it but it might be relevant. That is perhaps, again, a matter that we could return to in Committee.

In principle, and so far as the thrust of this short Bill is concerned, we are completely at one with the Government and look forward to concluding this matter rapidly for the benefit of trustees, beneficiaries and charities.

[Lord Phillips of Sudbury]

My Lords, I should have declared an interest earlier, which I need to do now. I am the founder of, and am still a consultant to, a firm of charity lawyers, Bates Wells & Braithwaite. I should have said that and apologise for not so doing. I will not enumerate the charities of which I am a trustee.

[Lord Henley]

The Committee will be grateful to the noble Lord for that declaration of interest.

I start by congratulating the noble Lord, Lord Beecham, on being the first speaker in this debate to mention Dickens, in this bicentenary of his death. I was wondering how long it would be before Jarndyce v Jarndyce appeared, and assure him that I was about to mention it. Although the noble Lord says that this has been only eight years in gestation, as my noble friend Lord Phillips put it, if we go back to a case that I was not familiar with but which is no doubt up on the wall in the noble Lord’s lavatory, Bouch v Sproule, that was some 125 years—so it has been going on for a considerable amount of time.

I hope to deal with some of the points that have been raised, but give an assurance to the House that this is the beginning of proceedings. We have rather a good form of procedure before us for these Law Commission Bills, which will allow this Bill to be properly scrutinised later on in Committee. Another place will also scrutinise the Bill properly—as it always does—in due course. I am sure we do it slightly better, but another place will have its role to play. I can give that assurance to my noble friend Lord Higgins—this is not some odd procedure whereby the Bill comes only to this House. It will go to another place in due course.

The first point that came up was raised by my noble friend Lord Phillips about Clause 3 and the discretion that is available to the trustees. What qualification was there for that discretion and might there be some alarm among trustees about whether they could be liable for how they exercise it?

I say to my noble friend that the Bill has so far been very carefully constructed. It has been looked at by many people of much greater erudition than me and, possibly, of even greater erudition than my noble friend. They have taken these points into consideration but the great advantage of this procedure is that we can look again as the Bill goes through the House. It is certainly something to which my noble friend might want to come back in Committee when we get to that stage, at which point our mutual noble friend Lord McNally will be dealing with the Bill for the Government. It will be a matter for that Committee.

[Lord Phillips of Sudbury]

Can I take it that the Minister will be happy for consultation with his officials to take place on this matter?

[Lord Henley]

Obviously, we are always more than happy for there to be consultation before, during and whenever to deal with these matters. They ought to be looked at and that is how we get the right result in the end on all Bills. It is something that we would more than encourage. I am sure the noble Lord will be in touch with the officials, and that he has already spoken to them, the Charity Commission and the Law Commission at some stage.

I move on to my noble friend Lord Hodgson’s concerns about whether the regulations in Clause 4, particularly the total return investment regulations in new Section 104B, will be too restrictive. Again, this is a matter that we will need to look at in some detail. However, it is a matter that the Charity Commission should be able to get right following consultation. I am certainly confident that it will strive to ensure that the regulations achieve just the right level of trusting the trustees to get things right and protecting charity funds. It is a matter that I hope the House will look at in detail.

I understand my noble friend’s concerns about English cathedrals and that he raised the matter at the Peers’ briefing in March. As a result of ongoing discussions at official level between the Ministry of Justice, the Law Commission, the Charity Commission and the Church Commissioners, they are all looking at the issue. In essence, the Association of English Cathedrals, which represents all the corporate bodies of our 42 cathedrals, has asked that Clause 4 be extended to include the cathedrals in its scope. The association considers that this would benefit the 20 or so cathedrals that have permanent endowment. That would put those English cathedrals on the same footing as the Welsh cathedrals. However, unlike cathedrals in Wales, cathedrals in England are not subject to the general regulation of the Charity Commission. The Government will consider the request from the Association of English Cathedrals carefully, but at present no final decision has been taken.

I cannot remember whether it was on this issue or another that my noble friend speculated as to whether the word “Resist” appeared in my briefing. I can assure him that it does not, although it might appear later as we discuss these matters further. However, this is not really a matter for the Government to resist; it is a matter for all of us to make sure that we get right. Again, I stress that this is not a government Bill; it is a Law Commission Bill, which we are ensuring gets on to the statute book.

My noble friend also asked about social impact and mixed-motive investment. The Government acknowledge that social or mixed-purpose investment is a highly important issue and are grateful to the noble Lord for drawing attention to it, both today and as part of the work of his ongoing review of charity law. The Government’s ambition is that social investment should become a major source of finance for the social sector. To this end, the Cabinet Office’s social investment team is working with other government departments to make this vision a reality. Social or mixed-purpose investment did not, however, form any part of the Law Commission’s work on capital and income in trusts and therefore has not been included in the Bill, by the Law Commission in its report or by the Ministry of Justice in its consultation. Therefore, at this stage we would not want to see anything further added.

I have already dealt with the question from my noble friend Lord Higgins as to whether the Bill will go to the Commons. I can give that assurance. My noble friend also asked whether it will apply only to new trusts, which I think was a question also raised by the noble Lord, Lord Beecham. I can give an assurance that the reform is prospective only. We believe that retrospective interference with existing trusts could frustrate the intention of the person who created the trust, contrary to the general principles of trust law. However, as the noble Lord, Lord Beecham, reminded us, in any drafting of trusts that he has been doing over the last however many years, he has been excluding the rules in Howe v Earl of Dartmouth and others, just as, I imagine, most practitioners have been doing.

My noble friend Lord Higgins also asked about the letter and whether there was going to be any effect on small and medium-sized businesses. We believe that it is unlikely to have a major effect on small and medium-sized enterprises. However, the impact assessment published by the Ministry of Justice states:

“While a reduction in the complexity of the current legal rules may lead to a very marginal reduction in trust related business for small legal firms and trust service suppliers, this is expected to be more than offset by reduced costs for trusts. Small legal firms and trust service suppliers may also benefit from additional business if there is an increase in the number of charities operating total return investment … We do not consider that the Bill is likely to have a disproportionate impact on the operations and performance of small businesses compared to others”.

Protection of Freedoms Bill

Lord Phillips of Sudbury Excerpts

Wednesday 15th February 2012 Lords Chamber

[Baroness Blackstone]

My Lords, I support both Amendment 55A and Amendment 56. I do not want to repeat all the arguments put forward by the noble Lord, Lord Sutherland, and the noble Baroness, Lady Brinton. I cannot support the amendment in the name of the noble Lord, Lord Lucas. I must admit that I found it exceedingly difficult to follow what he was saying at various points in his speech. Perhaps the Minister can reflect on the issues that he raised and explain them to the rest of the House. I also felt that the noble Lord had misunderstood some of the things said by the noble Baroness, Lady Brinton, who was referring to the release of research data before publication, not after it. I think he was confused about that.

I want to reinforce two points. The first has already been raised today, and I raised it in Committee, which is the cost of all this to universities, and higher education institutions in general, when they have to release enormous amounts of data, prepare them for reuse and sometimes have to redact large amounts of data. Can the Minister reassure the House that he will look again at the regulations that relate to charging for such work? Otherwise, publicly funded institutions will have to spend large amounts of taxpayers’ money on requests to release information which may be justifiable in the public interest, but where the cost may be too high to make it desirable.

I also want to reinforce the point made by the noble Baroness, Lady Benjamin. Universities are slightly difficult to define as institutions. They are not public bodies under any conventional definition, although they are of course in receipt of substantial amounts of public money. It would be helpful to the House if the Minister could reply to the noble Baroness’s questions about how they are to be defined with respect to commercial interests. The work that they undertake in knowledge transfer may have substantial commercial impacts on them. We need to know whether something which may not be a trade secret but may eventually lead to viable, commercially exploitable data and work should be defined as commercial.

[Lord Phillips of Sudbury]

My Lords, I speak as Chancellor of the University of Essex and as a lawyer who has spent a good deal of his professional time dealing with issues of publication of research, in particular in relation to the Association of Medical Research Charities. I support the amendment moved by my noble friend Lady Brinton and all the arguments advanced in support of it.

I shall make two points. The first is strongly to support what Universities UK has requested, as mentioned by my noble friend Lady Brinton. If ever there was an area of law and practice in need of thorough practical review and, as far as possible, simplification, it is this, because it is a nightmare at the moment and getting worse. Without my noble friend's amendment, or something like it, it will get a lot worse. The noble Lord, Lord Oxburgh, made the point that it would be severely self-damaging if we in this place were to encourage a state of affairs that put us at a competitive disadvantage with other countries.

I emphasise that this is a playground for lawyers and a nightmare for everyone else as it is because the judgments on the different aspects of this extremely difficult balancing act between freedom of public information on the one hand and necessary and proper restraint on the other could not be more complex. I do not envy my noble friend in having to summarise the debate, but I hope that the Government will take the Universities UK request seriously and urgently and that he will be able to support the practical and sensible points in the amendment moved by my noble friend Lady Brinton.

Protection of Freedoms Bill

Lord Phillips of Sudbury Excerpts

Thursday 15th December 2011 Grand Committee

Moved by

[Lord Phillips of Sudbury]

116: Clause 37, page 27, line 9, leave out from “granted” to “or” in line 10 and insert “an authorisation under section 22(3), (3B) or (3F), or renewed the same under section 23(5) and (6)”

[Lord Phillips of Sudbury]

My Lords, I apologise in advance for a singularly technical group of amendments, but they need to be explained, if only so that Hansard can show to those who are not here why they have been put forward. They are inescapably dry, not to say turgid. This group contains Amendments 116 to 119, which amend Clause 37, and Amendment 132 which, via the Bill, makes four amendments to Section 22 of the Regulation of Investigatory Powers Act 2000.

Clause 37 incorporates new Section 23A into RIPA 2000, thus extending the cases when judicial approval has to be obtained for surveillance. It is a clause that is to be welcomed, as indeed is the Bill as a whole. Amendments 116 to 119 to new Section 23A are drafting ones, but having suffered from unnecessarily obscure wording during the original passage of RIPA, where I led for these Benches, it still remains one of the most complex statutes there is. I hope that the Committee will think that the amendments are worth while.

Amendments 117 and 118 delete what I think are superfluous phrases from Clause 37, the phrases being, “if any” in subsection (2) and “as the case may be”, which appears later in that subsection. Superfluity of language is to be avoided.

Amendments 116 to 119 to the same new clause rectify what seems to me to be a clear error of drafting. I may say that putting together this Bill must have taxed the drafting skills of parliamentary draftsmen to the limit, and one can hardly be surprised if there is the occasional wrinkle. Amendments 116 and 119 address a confusion repeated in new Section 23A. It distinguishes authorisations under Section 22(3), (3B) and (3F) of RIPA from notices required under Section 22(4) of RIPA. Broadly, authorisations allow surveillance to take place whether or not subject to judicial approval, whereas notices are mandatory and require postal or telecommunications operators to disclose data. Both authorisations and notices, which are distinguished throughout both RIPA and this Bill, can be renewed but they are renewable under different provisions in RIPA 2000 and in this Bill.

However, new Section 23A, set out in Clause 37 of the Bill, states in subsections (1) and (3) that the renewal of authorisations is derived from the same sections as the grant of the same. My Amendments 115 and 119 would rectify that by making it clear that renewals are made under subsections (5) and (6) of Section 23 of RIPA 2000. I am not now entirely sure, on rereading my amendments, that reference to Section 23(6) in Amendment 119 is appropriate, but the Minister will soon tell me. It is rather a lot to ask him to have a view on these arcane matters on the instant.

Amendment 122 contains four amendments to Section 22 of RIPA, which will be incorporated through this Bill. Subsection (1) of Section 22 of RIPA gives the context within which breaches of privacy so as to disclose communications data shall be permissible. At the moment, it says:

“This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data”.

Perhaps we tried when the Bill was passed to insert “reasonably” before “believes”. However, it is never too late and my first change to Section 22 would achieve just that. It seems obvious and follows the general tenor of this Bill that the belief of the designated person should be reasonably arrived at.

The third change in my Amendment 122 to subsection (5) of Section 22 again seems to me obvious: namely, that a lazy or perverse belief on the part of any official should not be sufficient to trigger the authorisations permissible under this important but necessary invasion of citizen privacy.

The second change of my four is to subsection (3) of Section 22 of RIPA 2000, which, as it stands, appears to allow a designated person in effect to delegate his or her power of authorisation to,

“persons holding offices, ranks or positions with the same relevant public authority as the designated person to engage in any conduct to which this Chapter applies”.

Unless my interpretation of this subsection in RIPA is misconceived, this less-than-clear wording would allow a designated person, whose designation has to be prescribed by the Secretary of State by order under Section 25, to delegate under Section 22(3) to persons in the same public authority of any office, rank or position inferior to that of the person making the delegation. Again, in common sense, that cannot be right; hence my insertion of “comparable” so that the delegation by an official under Section 22(3) must be to a person of comparable rank or position.

Lastly—noble Lords will be glad to know that I am coming to the end of this exciting oration—the fourth amendment in my Amendment 122 harks back to the earlier ones in this group. It would change subsection (4)(b) of Section 23 of RIPA by removing “authorise or”, since those words relate to authorisations whereas subsection (4)(b) is exclusively concerned with notices, which, as I have explained, are not permissive but mandatory, and require—that is the relevant word—this or that from the postal or telecommunications operator to which the requirement is addressed.

I am sorry to have taxed the patience of the Committee with these somewhat obscure points but I believe that these amendments would improve the Bill. I beg to move.

[Baroness Hamwee]

My noble friend may not like this question, but we are all family here, are we not? I absolutely agree that one needs a good supply of hot towels when reading this Act. Almost the last point he made was about his Amendment 122, which draws attention to Section 22(3), granting authorisation “for persons holding”—he would like to say comparable—“offices”. I read that as meaning that if you are designated to grant authorisation, you can allow a colleague, whether or not of the same seniority, to engage in the conduct that is referred to in Section 21. What that seems to be doing is saying that the designated person is in a position to grant authorisation, but it is perfectly okay to grant it within his own authority and that the conduct referred to in Section 21 does not mean delegating or granting authorisation to a third party. I am sorry if I have added to the need for hot towels.

[Lord Phillips of Sudbury]

I am not perfectly sure that I understood my noble friend’s point. I think she is talking about comparability.

[Baroness Hamwee]

I am asking what the conduct is.

[Lord Phillips of Sudbury]

Yes. The reason I think that Section 22(3) of RIPA is wrong is that it does not make any requirement, as I see it, as to the rank or the position of the person to whom any delegation is made by the person originally designated under very carefully confined powers. As my noble friend pointed out, the definition of a designated person involves the Secretary of State making the designation, but when in Section 22(3) a delegation is in effect made, there is no such requirement. Where it refers to the same relevant public authority, that is fine. The person to whom delegation is made has got to be someone else in the same relevant public authority, but there is no requirement as to what rank that person is.

[Baroness Hamwee]

My Lords, my point was that I do not think this is about delegation of authority. I think it is about authorising the conduct which, were it to be proposed to be undertaken by someone in a different organisation, would require authorisation.

[Lord Phillips of Sudbury]

My Lords, my noble friend may be right. We disagree, as things stand, as to the meaning of Section 22(3) which, I think she will readily agree, is obscurely worded.

[The Earl of Erroll]

My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.

--- Later in debate ---

I hope that those technical explanations—hot towel stuff, as my noble friend Lady Hamwee said—will be sufficient to allow my noble friend to withdraw his amendment. If he has any further queries, I hope that I will be able to deal with them but, if necessary, I will write to him.

[Lord Phillips of Sudbury]

My Lords, I am grateful for the Minister’s reply. I let his officials have a copy of what I was going to say an hour or so in advance of this Committee so that it was not a complete surprise to them all. I shall need a little time to absorb the response. I have to be frank and say that on a number of issues, at first flush, I was not convinced. But the best way forward, if the Minister agrees, is that we have a conflab outside this Chamber on any points that have residual concern. I was not intending to divide the House at this stage in any event but no doubt he will afford me access to his Bill team so that we can sort anything out if it needs it.

[Lord Henley]

My Lords, it would be right that we should sit down and discuss this, and I would welcome a chance to arrange a meeting with my noble friend. It is technical and difficult stuff. My noble friend Lady Hamwee referred to it as hot-towel-around-the-head stuff. I think it might be almost more cold-towel-and-a-lot-of-black-coffee stuff. But whatever happens, we have to discuss it and we will certainly try to do so.

[Lord Phillips of Sudbury]

I am grateful to the Minister, although I would prefer whisky. I certainly accept what he said and I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

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[Lord Phillips of Sudbury]

Speak for yourself.

[Baroness Hamwee]

I do speak for myself. I hope Amendment 124, at any rate in the drafting, is a little more straightforward. I declare an interest as one of a number of vice presidents of the Chartered Institute of Environmental Health, from which this amendment comes. The amendment is concerned with environmental health and, in particular, with noise.

There has been, I understand, a long-running issue as to whether the investigation of noise nuisance requires covert surveillance. It is not the Home Office but in fact Defra which has mainly been concerned with this. Environmental health officers listen to noise in its context and record, one of the technical terms, anything listened to which brings—as I understand it since it is as the institute understands it—what it does within the meaning of Section 26(9) of RIPA. The Home Office takes the view that dealing with noise nuisance does not ordinarily require covert surveillance and so it is not caught by RIPA. Perhaps this amendment covers it if and when it does. Therefore this amendment is a probing one. The institute is generally in support of the need for judicial authorisation but so far as its work is concerned in this area there are some difficulties.

As this has been long running, it is able to anticipate the arguments that may be made against the need for such an amendment so I am going to start with the response and then its response to each of the Home Office’s likely responses. The first is that surveillance follows complaints so quickly that obtaining authorisation would not be reasonably practicable and that this excuses the need for authorisation. The institute says that the exception is when surveillance is undertaken as an “immediate response”, such as when a police officer sights a suspect in the street. There is always going to be a delay between the making of the noise complaint and its investigation. Secondly, if local authorities warn noise perpetrators that they may be monitored surveillance following that will not be covert and so will not be caught by RIPA.

Giving a warning causes delay. It rather undermines the duty on local authorities under the Environmental Protection Act to investigate complaints and quite obviously it would tend to be self-defeating. I dare say many noble Lords will have experienced complaint in different contexts to noise or what they may perceive as noise. I perceive muzak as noise. I have often asked for it to be turned down. It is turned down temporarily in a place of entertainment and up it goes again. Thirdly, if local authorities warn noise perpetrators that they may be monitored, again surveillance will not be covert and so not caught. I beg your pardon. I should have said that giving a warning takes the investigation out of RIPA and the measurement of sound pressure levels does not require authorisation. But there is no numerical standard for noise nuisance because environmental health officers have to judge the noise in context. Depending on what else is going on, the noise may or may not be intrusive, and for evidential purposes it is accepted practice to record it.

Fourthly, private information is unlikely to be obtained because perpetrators have no right of privacy to information that is audible outside the premises it is coming from. However, the institute draws attention to the definition in RIPA of “private information” by reference to its content as distinct from its audibility. Fifthly, surveillance carried out without authorisation is not necessarily unlawful. That is the case where there is an equivalent process of authorisation in another statute, but that does not apply in this case. Lastly, the whole thrust of this part of the Bill is the protection of magistrates’ approval against unjustified snooping by local authorities, and both I and the institute have sympathy with that. The Home Office has confirmed in Answer to a parliamentary Question in another place that there is no evidence to suggest that noise investigations are being carried out inappropriately by local authorities. We have read of instances where local authorities have rather overstepped the mark in their use of the powers, but this is not one of those examples.

In the hope that I have not taken too much of the Minister’s speech in anticipation of the answer, I beg to move.

Protection of Freedoms Bill

Lord Phillips of Sudbury Excerpts

Tuesday 13th December 2011 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I support this group of amendments, but with a degree of confusion as to just what the Bill provides. If one looks at Clause 29, which introduces the code of practice, there is no reference there at all to relevant authority. There are two references in subsections (3)(f) and (3)(g) simply to “persons” operating a CCTV system. The more my noble friend introduced the group of amendments, the more I wondered why on earth this code is not applicable to all users of CCTV systems, be they public, private or whatever. Why, for example, in a shopping mall with endless numbers of CCTV cameras should they not be subject to the code requirements, just as any of the relevant authorities as defined in Clause 33 are? My noble friend the Minister might like to ask her officials whether Clause 29 was indeed drafted to apply to all those operating CCTV systems, and why Clause 33 itself refers twice to relevant authorities but in subsection (2) simply refers to a

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

of the code.

[Lord Tunnicliffe]

My Lords, the dilemma in front of us is basically to do with the application of CCTV, its value and the safeguards related to its value. I have peculiar experience of this, having headed up an organisation which had probably one of the largest CCTV installations in the UK. I have to say it was introduced before anybody thought about any sort of code, and we built up practice. Our experience was that the benefits massively outweighed the disadvantages. Our other experience was that acceptance by the general public simply grew with time. In London, people are used to CCTV on transport systems, in public spaces and so on. We think that the benefits are enormous.

We are not against the general concept of introducing a code, but we have all made it clear that we think the way this code is being introduced is wrong. The right thing to do is to have an inquiry to understand the extent of the problem, to start working up criteria and so on. However, if the Government insist on introducing this code more rapidly than that, we would be against its extension to all publicly funded areas and to schools and colleges. This is not because we are against extension of the code—as has been rightly pointed out, there are many privately owned CCTV cameras that could sensibly fall within a comprehensive code. What we are against is the extension of that code until the right amount of experience has been gained and investigation has taken place. Otherwise, these crucial areas, particularly schools and colleges, where CCTV is so valuable, will be burdened with a bureaucratic nightmare until we achieve a code that gets the right balance of being bureaucratically light while achieving the effective objectives of public engagement and acceptance. Therefore, in this Bill at this time we do not support these amendments.

--- Later in debate ---

[Baroness Hamwee]

My Lords, this amendment proposes that the commissioner should, within three years, prepare a report about the extension of the code to other operators. We have already touched on this in referring to Clause 33. My noble friend Lord Phillips, who has been taxing me with notes asking me to justify the drafting of this section, which is not my responsibility, asked under a previous amendment not about the extension of the code but about which operators were subject to it. He was asking why this chapter starts by appearing to be quite general and then becomes more restrictive once we get into the detail of Clause 33. He is nodding; I hope that I am interpreting him correctly.

My understanding of this is that because, under Clause 33(5)(k), more persons can be added to those who come within the definition “relevant authority”, Clause 29 and the succeeding clauses are drafted in that slightly wider way. I share my noble friend’s concern that “relevant authorities” should extend to a wider group of operators than are listed in Clause 33(5)(a) to (j).

A similar question was asked during the Committee stage in the Commons, and the Minister, James Brokenshire, said:

“The report—

this is the regular report to the commissioner—

“will be an instructive and formal means for the commissioner to telegraph clear recommendations about the code, its application and whether it is achieving its intended objectives”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 26/4/11; col. 364.]

My amendment takes the matter wider to those who operate the code.

It occurred to me only during this debate that it will be helpful to have—and I am sorry to be technical, but the noble Lord, Lord Faulks, will probably tell me that I am not accurate in this question—reassurance that the sui generis rule does not apply and that by having a list that is very specific we are not stuck to those organisations and persons who are similar to those listed in paragraphs (a) to (j) of Clause 33(5). Clearly there is concern that a much wider group of persons—private companies do not quite come within this—and all operators of CCTV, those who run shopping malls, for instance, should not be brought within the scope of the code. We know how the concerns have started, but the more we talk about it, some of us feel that there should be a code that is observed by all operators. While I understand that getting experience of the use of the code under one’s belt might be a good thing, I think that we would like to know that the position will be reviewed in fairly short order. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I would just like to add a few points to those made very effectively by my noble friend Lady Hamwee. I regret to ask the Minister some questions, because it always seems churlish to spring technical questions upon a well meaning Minister, but I hope he gets advice from his rear quickly.

First, Clause 34 “Commissioner in relation to code” states that in Clause 34(2)(b) that the commissioner has the function of,

“reviewing the operation of the code”.

I agree with my noble friend Lady Hamwee that that does not, on the normal reading of those words, extend to consideration of the exercise of power to specify new bodies to be caught by the code under Clause 33(5)(k).

Secondly, will the Minister confirm that there is nothing in Clause 35 “Reports by Commissioner” that appears to authorise the commissioner in making reports to consider the point of extension of the code, which I would have thought justifies Amendment 113?

Finally, all those arguments would count for nought if in Clause 33(5)(k) the proper construction of “any person” is to confine “any person” to bodies comparable to “relevant authorities”. My own view is that it does not. In view of the opaqueness of the drafting of this part of the Bill and, as I said earlier, the fact that Clause 29 refers twice to “persons” but not at all to relevant authorities, I feel we need to be very clear of our ground here. In my humble view, there is a lot more concern about the operation of CCTV cameras by private interests than by public ones. I cannot think, for example, that the Sub-Treasurer of the Inner Temple is likely to abuse the CCTV cameras within his or her purview, but I am afraid I can foresee that some private operators might get up to things that are extremely undesirable.

The end of all that is whether the Minister can say to us now that he will take this away, look at it and if necessary bring forward his own amendment at the next stage of the Bill. I hope he might do that. I apologise again for springing this rather nasty group of questions upon him, but I was unprepared for the debate as it has evolved.

[Lord Henley]

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

[Lord Phillips of Sudbury]

I give him that assurance from my heart.

[Lord Henley]

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

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

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

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

[Lord Phillips of Sudbury]

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

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

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

[Lord Henley]

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

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

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

[Lord Phillips of Sudbury]

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

“In this section ‘relevant authority’ means”,

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

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I support my noble friend on this group of amendments. I was the unfortunate person who was the main spokesman for these Benches on the original Regulation of Investigatory Powers Bill, and what a nightmare it was. Indeed, what a nightmare RIPA 2000 still is. It is one of the paradoxes of human rights law these days that it is for every man and every woman but the way in which it is framed—and, to some extent, I suppose, has to be framed—means that it is almost inaccessible except to a handful of specialist lawyers. This Bill is an exemplification of that on stilts.

A few moments ago, the noble Lord, Lord Tunnicliffe, moved Amendment 114, calling for an independent inquiry into the use of investigative powers, which has some commonality with Amendment 128. Despite what the Minister said, I believe that RIPA is important, and getting more important given the advances in technology in so complex and fast-moving a world. We have the Leveson inquiry at the moment looking into breaches in one corner of this surveillance market. I believe that despite the expense—and it is fair never to ignore the expense and time involved in these investigations, inquiries and reviews—this is a warranted proposal.

The existing RIPA is internally inconsistent. Its implementation is certainly widely inconsistent. I believe that we need to be highly sensitive to the issue of civic trust because in the surveillance society there is a culture that is extremely unhealthy to democracy and in which citizens feel that their lives are not their own. If one wanted one most vivid example of the state of affairs that I am trying to describe, it is the reaction of the public to the Milly Dowler affair, which still reverberates. That was a fair reflection of the degree of sensitivity that exists in relation to intrusive surveillance and so on. Because of the points so well put by my noble friend Lady Miller, I think that despite the cost and the fact that the commissioners make annual reports, at this stage, more than 10 years after the passage of RIPA in 2000, the Government should think hard about standing back from this legislation and the amendments that will be introduced by this Bill and look at RIPA hard and long and carefully, and with wide public consultation that goes beyond the usual suspects and gets to the sort of people who were so frantic about some of the revelations that have been before us in the past year or so and are being rehashed in the Leveson inquiry.

For those reasons, I support this group of amendments and the increase in judicial oversight of the whole apparatus of intrusive, directed and covert surveillance that we have heard about today.

[Lord Selsdon]

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

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

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

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

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

Phone Hacking

Lord Phillips of Sudbury Excerpts

Tuesday 6th December 2011 Lords Chamber

[Lord Maxton]

My Lords—

[Lord Phillips of Sudbury]

My Lords—

[Lord McNally]

We shall hear from the noble Lord, Lord Maxwell, please.

[Lord Henley]

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

[Lord Phillips of Sudbury]

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

Protection of Freedoms Bill

Lord Phillips of Sudbury Excerpts

Tuesday 29th November 2011 Lords Chamber

Rather than destroy a vital bank of data that can never be retrieved on the basis of no new evidence, will the Government not agree to undertake a proper assessment to ascertain the right limits and the true risks to public safety? Evidence shows that the effect of destroying the database and reducing retention would be that 23,000 criminals a year who will no longer be on the database could commit 6,000 further crimes. This research was not published by the Government when the Bill was produced. In its evidence to the Public Bill Committee, ACPO estimated that the proposed changes would lead to a loss of about 1,000 successful—

[Lord Phillips of Sudbury]

I am sorry to interrupt the noble Baroness. She mentioned 23,000 offences. Do they include minor offences?

[Baroness Royall of Blaisdon]

My Lords, I would like to be able to answer the noble Lord but I regret that I cannot. I will come back to him in writing.

The statistics and the lack of evidence for the Government’s proposals mean that Amendment 1 is essential.

I turn to Amendments 7 and 8, in my name and those of my noble friends Lord Tunnicliffe and Lord Rosser. Persons arrested for or charged with a qualifying serious offence should have their DNA and fingerprints stored for six years. This replicates the provisions of the Crime and Security Act 2010, which was passed by Parliament but never brought into force. The six-year limit is based on Home Office analysis and reflects a proportionate response to the ECHR decision. As I mentioned earlier, the three-year figure comes from the Scottish model, which was based on no analysis of risk to public security. That is why Amendments 2 and 3 are essential. They will ensure a six-year rather than a three-year limit for the retention of DNA and fingerprints. I beg to move.

--- Later in debate ---

[Lord Condon]

My Lords, I also support Amendment 1, for the reasons set out so eloquently by the noble Baroness, Lady Royall. I respect entirely the Government’s wish to revisit the balance and to ensure that there is public confidence in the retention of DNA. I have not been an overstrident defender of police powers or police databases for their own sake. However, this is one area where the Government are in danger of getting it wrong and coming down on the side of a change that will not be in the interests of the public.

It is now 12 years since I retired as Metropolitan Police Commissioner, and there have been more advances in DNA science in those 12 years than in the whole history before that period. More and more cases can be reviewed in a cold case way, particularly in the area of sexual offences and violence, where the database has been invaluable in bringing to justice people who have been vicious assailants of both men and women.

If, as I suspect, the Government are not of a mind to give much way on this amendment, I hope the Minister will at least give us some reassurance on how the advances in science and DNA will not be neutralised by shedding DNA databases, which will be so valuable in looking back as well as forward.

[Lord Phillips of Sudbury]

My Lords, I rise with diffidence to support my Government, because I think that the issues are extremely difficult and that one has to balance very unalike aspects of our society and culture. I was going to say, until the noble Lord, Lord Campbell-Savours, said it for me, that the logical conclusion to question of the retention of DNA, fingerprints and so on would be for the whole population to be required to give its DNA, fingerprints and so on. That has a simplistic appeal to it. The argument against it, however, is rather the same as the argument against there being surveillance cameras on every corner, in every street and in every lane—the same as the argument against intrusive surveillance through telecommunications. After all, if one could tap any and every conversation all the time, one would no doubt have another huge reservoir of information wherewith to convict criminals.

Charities Bill [HL]

Lord Phillips of Sudbury Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Baroness Verma]

My Lords, I hope to be able to keep my contribution relatively short. I will give a brief explanation of the drafting amendment that we have put down. I will also mention the review of the Charities Act 2006, which will include consideration of the substantive issue that lies behind this amendment.

The amendment responds to the point that was raised in Committee by my noble friend Lord Phillips of Sudbury. As the law stands, there are two subtly different definitions of charitable purpose that are used in different contexts. The definition of charitable purpose in Clause 2 is a definition which applies generally; that is, in legislation generally and in documents such as trust deeds, and in England and Wales as well as, for certain purposes, Scotland and Northern Ireland. The definition of charitable purpose in Clause 11 has a much more limited application. It applies only in England and Wales and only to provisions derived from the Charities Act 1993.

The initial suggestion of my noble friend Lord Phillips was that the two definitions should be combined into one. This was not an option, however, as the rules for consolidation Bills constrain the drafter from making any changes that would alter the meaning of the current law, so both definitions of charitable purpose had to be consolidated into the Charities Bill.

The remaining concern of my noble friend Lord Phillips was that a reader of the legislation could miss the fact that there are two subtly different definitions of charitable purpose that apply in different contexts. He suggested certain drafting amendments to address this point. The amendment we have put down deals with the issue more simply by placing a flag at the end of Clause 2 to alert the reader to the existence of the separate definition of charitable purpose in Clause 11. As I said during Committee stage, we recognise that there is a more fundamental point that ought to be considered; namely, whether it is possible to have one definition of charitable purpose rather than the two that exist in the current law. Although we could not consider such a change in this Bill, I do undertake for it to be included in the review of the Charities Act 2006.

My noble friend Lord Hodgson of Astley Abbotts has been appointed to undertake the review of the Charities Act 2006. He has recently chaired the red tape task force, the sensible and practical recommendations of which have been widely welcomed by the charity sector. Also, as an opposition Front-Bench spokesperson during the previous Administration, he led on the Companies Act 2006 and the Charities Act 2006. His significant experience makes him ideally suited to lead this review and I am sure that your Lordships will join me in welcoming his appointment.

The aims of the review will be twofold: to report on the operation and effectiveness of the provisions of the Charities Act 2006; and to consider whether further changes could be made to improve the legal and regulatory framework for charities. The terms of reference are broadly drawn to reflect these aims. I have placed a copy of the terms of reference in the House Library and they are available on the Cabinet Office website. The review is expected to report before Summer Recess in 2012 and a copy of the report will be laid in Parliament.

My noble friend Lord Hodgson has confirmed that he will consider the concern of my noble friend Lord Phillips about the two definitions of charitable purpose as part of his review. In the mean time, although this amendment will not resolve the underlying problem, it will ensure that readers of the legislation are aware that there are two definitions of charitable purpose. As such it is helpful. I beg to move.

[Lord Phillips of Sudbury]

My Lords, I am grateful for what my noble friend the Minister said in respect of the amendment in her name. I can only concur with and applaud it, because, in my view, the Bill as drafted, given the limitations of consolidation statute, was none the less a big elephant trap for any non-charity lawyer who waded into the same, not realising that the definition in Clause 2 was subtly but significantly different from the definition in Clause 11 of the same phrase. It may seem odd for a charity lawyer to have, as a near-passion, the wish to try and keep charity law as simple, direct and plain as possible; but that has always been my position. It was during the course of the Charities Bill in 2006, when I led for these Benches, and remains an abiding passion in an age that seems to get more and more complicated and trammelled by regulation and so on. Therefore, I am glad at least that we have got this in the Bill. I perfectly understand the limitations of these consolidation statutes and therefore cannot complain that something more has not been done. I am grateful that it will be on the agenda of my noble friend Lord Hodgson; whom I congratulate, if that is the right word, on being appointed to undertake this review. I am glad that I was the author of this review clause in the 2006 Act. The noble Lord can blame me.

[Lord Hodgson of Astley Abbotts]

I will.

[Lord Phillips of Sudbury]

I am sure. We will all assist him as best we can because I know that he, too, wants to try to make charity law as accessible as possible to the volunteers who are the heart and soul of the charity sector. We will have a lot of excitement when we come back to this House with a new Bill that will, I hope, do a bit of deck clearing. With that, I silence myself.

[Lord Hodgson of Astley Abbotts]

My Lords, I will not detain the House for long, but I am very happy to confirm what my noble friend has said from the Front Bench. The terms of reference that I have been given are widely drawn. While obviously a lot of our time will be spent on the big issues that affect the sector, we shall want to make sure we do as much tidying up as we can of some of the more specific and technical points, of which this is one.

Already some of the professional bodies such as the Charity Law Association are in touch about some of the things they would like cleared up. I am sure there will be no shortage of views and things for us to do. I very much hope that we get a lot of input, not just from the usual suspects in the sector, but also views from the general public because it is important they should have some say in how their charity sector is structured in the future. Certainly we will make sure—I would be much too frightened not to—that my noble friend’s point is addressed some time between now and next July.

Terrorism Prevention and Investigation Measures Bill

Lord Phillips of Sudbury Excerpts

Tuesday 15th November 2011 Lords Chamber

I end on a personal note. I have been involved with matters of national security for many years, since I first became chairman of the Security Commission 25 years ago. I am therefore familiar with the sort of considerations which actuate Governments in these matters, but I cannot think of a single good reason why this order under Clause 2 should not be made by the court. If it is extremely urgent, then the order will be made ex parte by the judge and issued in the ordinary way pending the full hearing under Clause 9. I simply cannot see the difficulty in that. I cannot see the advantage of the order being made by the Secretary of State but I can see many disadvantages. I beg to move.

[Lord Phillips of Sudbury]

I am sorry that I did not give the noble and learned Lord leave of this question. I am entirely in sympathy with what he said in moving the amendment, but can he tell the House what happens if, as his amendment says, the court rather than the Secretary of State may,

“impose specified terrorism prevention and investigation measures”,

and if the court has to consider whether conditions A to C are met? Condition A reads that,

“the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

Does that then mean that the court has to make the order, but it has to consider whether the Secretary of State reasonably believes—or should there ideally be a removal of “Secretary of State” in Clause 3(1) and replacement by “the court”? I hope that I have made myself reasonably clear.

[Lord Lloyd of Berwick]

The noble Lord has been very clear. I fully understand—and that is exactly what is provided in a subsequent amendment. I think that it is Amendment 3. You have to read Amendment 1 with an amendment that strikes out the words,

“the Secretary of State reasonably believes”,

in Clause 3(1). So it does tie up.

[Lord Phillips of Sudbury]

I could not see the amendment that did that.

[Lord Lloyd of Berwick]

I think that it is Amendment 3.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I, too, support this amendment. I want to thank the most reverend Primate for his remarks. It would be very easy for this to become a debate in which lawyers hold the floor, but it should not be, because this is so fundamental to who we are and what our system is here in Britain. We are talking about the rule of law and about liberty and the protections we provide for it.

I wanted to pick up what my noble friend Lady Hayman said when she answered the question: what is so special about judges? Her answer was that they are not politicians. It is more than that. Our judiciary is independent. We spend time—I certainly do—speaking to lawyers and judges in other jurisdictions about what the meaning of an independent judiciary really is, and how it protects our politics. As the most reverend Primate has said, it is a protection for the politicians and for our polity that we hand over issues to do with something as precious as liberty to judges—even in these exceptional circumstances—because that way we are adding weight to the importance of liberty’s meaning in all of our lives.

[Lord Phillips of Sudbury]

My Lords, I support strongly the last point made by the noble Lord, Lord Pannick, which has been indirectly referred to by the noble Baronesses, Lady Kennedy and Lady Hayman, and by the noble Lord, Lord Macdonald of River Glaven. I hope that my noble friend will take full account of the political importance of this group of amendments. The psychology of extremism feeds on a sense of unfairness and oppression. The law as it stands, and indeed as it is improved in the Bill, will inadvertently provide to those who already feel hard done by, or the subject of extreme unfairness, a spur to yet further, potentially terrorist, activities. That will be the case if an important decision of this nature— which has, as other noble Lords have said, extreme repercussions—is not the decision of an independent judge but that of a politician. However good the politician is, the person who may be converted to extremism will view that politician as an agent of politics and not as an agent of justice. For that reason, among many others, I urge my noble friend to adopt these amendments.

[Lord Condon]

My Lords, I, too, support the amendment proposed by the noble and learned Lord, Lord Lloyd, on the grounds that have already been spoken of, but also on the very pragmatic grounds that, every time we as a country step beyond the normal bounds of the rule of law, or contemplate extra-judicial measures, or contemplate allowing the Executive to have powers in this area, we risk alienating young men and women who may be wavering around, or contemplating being drawn into, terrorism. We create war stories and martyrdom. Even though these are small in number, they can be used to recruit vulnerable young people into supporting or contemplating terrorism.

History tells us that every time Governments—here or abroad—have contemplated extra-judicial executive powers, in the long term those powers have tended to work against us. I understand the reasons why Governments want to maintain public confidence by being and appearing to be very tough on terrorism, and the pragmatism of police forces and intelligence services which want the widest battery of powers to be available to them immediately as they contemplate their response to terrorism. However, I fear that this power and others that I have previously spoken against in your Lordships’ House could be counterproductive in the long-term fight against terrorism. That is why I support the amendment that we are considering today.

Terrorism Prevention and Investigation Measures Bill

Lord Phillips of Sudbury Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Pannick]

My Lords, Amendments 17, 42 and 43 in this group are in my name.

First, I would like to say that I support everything that has been said about their amendments by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lords, Lord Goodhart and Lord Morgan—although I have not known the noble and learned Lord, Lord Lloyd, for quite as long as I have known the noble Lord, Lord Goodhart. I support them because their amendments are designed to ensure that the imposition of a TPIM notice is a judicial act, and not an administrative act. If a restriction on basic liberty of this sort is to be imposed on British citizens because of allegations of wrongdoing, and it is not to be a part of the criminal justice process, then surely the procedure must contain as much of the rule of law as is possible.

When opening the debate at Second Reading, the Minister said at column 1137 that the Government’s approach to balancing civil liberties and national security in this context is that the Bill should go no further in limiting people’s rights “than is absolutely necessary”. That was the test he laid down, and it seems to me that that is the right test. However, if we are going to apply that test, surely it requires that the restrictions on people’s liberties are imposed only with the prior approval of a judge. If the security services cannot persuade a judge in a closed session—because that is what is going to take place—that the restrictions are needed, then surely they should not be imposed. In an urgent case, the judge would be asked to give temporary approval until the matter can be fully considered.

There was a suggestion at Second Reading that perhaps the judiciary would not want this responsibility. There are two answers to that. First, the Bill confers on the judiciary the responsibility for deciding whether a TPIM notice is appropriate at a later stage. There seems to be no difference in principle if the judiciary is instead asked to make the decision at the outset. Secondly, your Lordships should in any event have no doubt that if Parliament decides that it is appropriate to ask the judiciary to perform this role at the earlier stage, Her Majesty’s judges will perform their duty faithfully and effectively.

That is what I wanted to add on the amendments of the noble and learned Lord, Lord Lloyd. If, however, judicial control at the outset is not to be included in this Bill—which would be most regrettable—and if the imposition of a TPIM order is to remain at the outset an administrative process, then I have an alternative amendment, Amendment 17, to which the noble Baroness, Lady Hamwee, has added her name. The amendment concerns the standard of proof.

Under Clause 3(1), a TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

Amendment 17 seeks to substitute a test of the balance of probabilities. I would ask the Minister, in responding to this debate, to explain why it is that reasonable belief should suffice as the test to be imposed by the Secretary of State. A belief may be reasonable but wrong. Why should these sanctions be imposed on a person if the Secretary of State is unable even to be persuaded that it is more likely than not that the wrongdoing has been committed, or will be committed, by the individual concerned?

If the security services, with all the resources available to them, cannot satisfy the Home Secretary that on the balance of probabilities more likely than not an individual is involved in terrorist activities, surely there is no justification for imposing these restrictions on them. Of course, surveillance measures may well be appropriate even in relation to such a person against whom it cannot be shown on the balance of probabilities that they are involved—but that is a different matter and we are not discussing surveillance measures.

I want to speak also to Amendments 42 and 43 in this group which stand in my name. They ensure that when the court assesses the TPIM at a later stage under Clause 9, the court should form its own view on the merits and not apply a judicial review test. These amendments arise out of the concern expressed by your Lordships’ Constitution Committee, of which I am a member, at paragraphs 14 to 17 of its report. At Clauses 9(2) and 16(6), the Bill provides that when the court reviews the TPIM at the later stage, it should apply a judicial review test. In the control order context, the courts have made it very clear that they will treat the review as an appeal on the merits of the case. The Government’s Explanatory Notes accompanying the Bill accept that this enhanced level of scrutiny should also apply to the TPIMs.

The report of the Joint Committee on Human Rights, published today, also supports my Amendments 42 and 43. It says:

“The surest way to deliver the intense scrutiny that the Government says it intends is to write it explicitly into the Bill. We therefore recommend that the Bill be amended to make it clear on the face of the Bill that the review to be conducted by the courts at the review hearing is a ‘merits review’ (as opposed to a supervisory review)”.

Will the Minister please accept, as the Constitution Committee and the JCHR have proposed, that it is desirable to make it clear on the face of the Bill that at the later stage the court will be conducting an appeal on the merits, just as is the case in relation to control orders and as the Explanatory Notes state the Government intend to occur?

[Lord Phillips of Sudbury]

My Lords, my name appears with others on Amendments 1 to 4, 16 and 18 to 22. Amendment 5 stands in my name only. I accept that the Bill is warranted, but I echo the point that where in extreme circumstances—national security is a fit subject for an extremity—one departs from a fundamental freedom, it seems to be blindingly obvious that there is no less a fundamental duty to minimise that departure. I cannot for the life of me see how we do that by giving to a politician, however distinguished and assiduous, the task of making one of these—I am tempted to say draconian—orders on his or her own. That cannot be right and I echo all that has been said, in particular by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Goodhart.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, in this context, unlike my noble friends and other noble Lords who have spoken, I propose to speak in support of the Government and of the proposals in this part of the Bill. I hesitate to dice with a great historian on matters of history, but I say to the noble Lord, Lord Morgan, that he was a little selective in his expression of the historical context. First, in describing Regulation 18B, perhaps he should have told the House that it was of a completely different character. The way in which it was made meant that the victim or subject knew nothing at all of the reasons why the order was made. The so-called tribunal that heard Regulation 18B cases was completely lacking in transparency of any kind. The great dissenting judgment of that wonderful Welsh judge, Lord Atkin, in Liversidge v Anderson took decades to be accepted as the norm for judicial review. Although Churchill described Regulation 18B and its procedures as,

“in the highest degree odious”,

a phrase that has become celebrated, the fact remains that during Churchill’s prime ministership numerous people—indeed, hundreds of people—were imprisoned as a result of it, and he did not take steps to legislate in favour of that dissenting judgment. Indeed, it was long after he had ceased to be Prime Minister that that happened. I think that the lessons of history as described by the noble Lord are not terribly helpful.

One should also bear in mind that whether we are talking about control orders or the diluted version in TPIMs—admittedly only slightly diluted, apart from the matter that we are going to consider in the next group—they do not involve the incarceration of the individual. They involve some restrictions on the individual’s freedom which I understand most in this House regard as proportionate and reasonable given the requirements of national security.

My noble friend looks as though he wants to intervene, but then he always does. Does he want to?

[Lord Phillips of Sudbury]

He does. It seems to me that my noble friend’s historic account of Regulation 18B omits to mention that it was prevalent during wartime and that, as soon as that was over, it was repealed.

[Lord Carlile of Berriew]

Which was one of the reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B and almost none of them had any evidence of any kind whatever against them. When we are dealing with TPIMs or control orders, we have individuals against whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that intelligence, but had he done so he would undoubtedly be so satisfied, being a reasonable person.

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[Lord Rosser]

I have no doubt that the views that I am expressing are not in line with those of a great many people, but perhaps they did not have to deal with the situation that we face today—the threat of acts of terrorism. I repeat that we regard this as a ministerial decision. It should be made by a Minister responsible for national security, accountable to Parliament and the electorate, and open to challenge in the media. Such a decision is subject to scrutiny by and in the courts but it is the Secretary of State who should make the decision. The Government, not the courts, will be held accountable for the top priority of protecting the public from terrorism. Governments, not judges, pay the price for failing to protect the nation from terrorism, and people look to their Government, not the courts, to protect them from acts of terrorism.

[Lord Phillips of Sudbury]

The noble Lord has twice said that the Minister is answerable to the media. How can the Minister be answerable to the media for an order made in total secrecy?

[Lord Rosser]

I said “open to challenge in the media”; I am not sure that is the same as being accountable to the media. On this issue we continue to hold a very different view from that expressed by, among others, the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Morgan.

I appreciate that one of the arguments is that the very system of control orders that we have provokes people who might otherwise have been only minded to commit acts of terrorism actually to do so. I am not aware of the evidence that supports that contention but I am aware that acts of terrorism were committed when there were no control orders in existence and that control orders, which have affected a limited number of people, seem to have been in effect during a period when we have been afforded a fair degree of protection from acts of terrorism, despite the threat level having been either severe or substantial.

I also appreciate that there are concerns over human rights. However, I understand that it is being held that control orders are compliant with the European Convention on Human Rights. As well as the rights of the individual, there are surely issues about the rights of innocent people to be protected from acts of terrorism. As the Minister said at Second Reading:

“It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported”.—[Official Report, 5/10/11; col. 1134.]

The current Secretary of State has been prepared to use control orders, including the relocation provision, and has received the clear backing of the courts.

We do not agree with much of this Bill, as we made clear at Second Reading. The Government have already made changes that weaken the current arrangements and risk having an adverse impact on the ability to protect the public from terrorism. We do not agree with these amendments that we are discussing, apart from the thrust of Amendments 42 and 43 tabled by the noble Lord, Lord Pannick, which is why we have given notice of our intention to oppose Clause 9. We wait to see whether the Minister will accept any or all of the amendments, which in our view water down the current arrangements even further.

Terrorism Prevention and Investigation Measures Bill

Lord Phillips of Sudbury Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, first, I thank the Minister for his careful explanation of the Bill. I would very much like to welcome him to his new portfolio and well deserved promotion, and I look forward to working with him. I echo his tribute to the noble Baroness, Lady Browning, for her stewardship of the Home Office brief. I very much enjoyed debating the—perhaps I may say—unlamented police Bill as it went through your Lordships’ House. She was a very good debater and listener who will be very much missed from the Front Bench.

The security of this country is of paramount importance and the Official Opposition would always wish, wherever possible, to support Her Majesty’s Government in their counterterrorism policies. The introduction of control orders was controversial because they can impose intrusive restrictions on individuals who in most cases will not have been convicted of a terrorism offence on the basis of closed material. We would always prefer to prosecute terrorist offences through the courts. Control orders are not desirable but I believe that they were necessary to deal with a discrete number of individuals who for one reason or another could not be prosecuted but posed a terrorist threat. The decision to introduce control orders has been vindicated through the way that the public has been protected from the risk of terrorism, but also as evidenced by the vigorous judicial process undertaken in relation to control orders.

The parties opposite, when in opposition, made a great deal of their concerns over control orders. In government, I suspect that the Home Secretary has come up against reality, but still feels obliged to introduce this Bill. It is a flawed Bill, it is a fudged Bill. It seems to owe as much to the needs of the coalition as it does to national security. Just as we see a faultline running between the two governing parties on European human rights legislation, so we see a faultline in the legislation in our debate today. On the one hand, we have the Bill, which the Government say—and the Minister repeated it this afternoon—provides greater safeguards for the civil rights of suspected terrorists. But we also have another Bill—the draft emergency Bill, which the Home Secretary will carry around in a back pocket for the inevitable moment when this Bill is found wanting. The problem with a faultline is that there can often be a gap. I hope that national security will not fall into it.

At the heart of my concern is the fear that the Home Secretary’s powers to deal with the most difficult cases are being weakened. Nowhere is that more evident than in the central issue of relocation without consent. Relocation powers have proved to be extremely useful in disrupting terrorist activity and have been regularly described by the police as one of the most effective powers that they have. How many of the control orders in force have relocation as part of them? In evidence to the Public Bill Committee in another place, Deputy Assistant Commissioner Stuart Osborne said:

“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]

The Home Secretary clearly thinks so. In May of this year, just five months ago, the Home Secretary argued in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack. The judge in that case said:

“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist attack.”

In July of this year, the Home Secretary said in the case of BM that relocation outside London was “fundamental” to preventing terrorist activity. In that case, BM admitted that he was committed to terrorism. The Home Secretary believes that those powers, which were needed three and five months ago, are not needed now. What has really changed in that period?

Ministers claim that they will put more surveillance in place but again, the senior representative of the Metropolitan Police, in evidence to the Public Bill Committee, said this:

“To get the resources we anticipate we need will take more than a year in terms of being able to get people trained and to get the right equipment”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

It is simply not credible that the security environment has changed so substantially in the past three or five months that the powers needed then are not needed now. Are the Government really saying to this House—in Olympic year, of all years—that the powers are needed less in the coming year than they were last year, when the Home Secretary felt that she needed to use them five times?

Of course, Ministers have already conceded that additional powers may be needed, so they have published draft emergency legislation, as the noble Lord, Lord Henley, remarked at the end of his speech. That will give the Home Secretary powers to impose what have come to be known as enhanced TPIM notices which make it possible to impose stringent restrictions on individuals, including relocation without consent. We have the rather extraordinary position of the Government saying, “We do not like control orders so we are getting rid of them, but until we do that we are going to go to the courts and argue vigorously for their use, and we will keep emergency legislation just in case this Bill turns out to be inadequate”. The Government want to go further: from a position of apparent opposition to control orders, remarkably, this Bill now contains in Clause 26 a provision that allows the Home Secretary to impose the enhanced TPIM notices which should be the subject of the emergency legislation during the period between the dissolution of Parliament and the first Queen’s Speech of the new Parliament. I suggest that if extraordinary provision such as that is needed, the Home Secretary needs it now and it should be in this Bill.

[Lord Phillips of Sudbury]

My Lords, on the noble Lord’s point about the absence of a relocation direction, does not the power to exclude a person subject to a TPIM notice from any area as specified provide a great deal of the protection that he wants? That is set out in paragraph 3 of Schedule 1.

[Lord Hunt of Kings Heath]

Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.

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[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way, but I must ask him the same question as I asked the noble Lord, Lord Hunt. Paragraph 3 of Schedule 1 states:

“The Secretary of State may impose restrictions on the individual entering … a specified area”.

The Minister can prevent someone entering London —so what is the noble Lord on about?

[Lord Harris of Haringey]

I am of course delighted to try to defend the Bill on behalf of the Minister, although I suspect that the Minister will do a very good job of that in a moment. However, my interpretation of the provision is that it is about very specific locations and particular areas—for example the Olympic park, or whatever else it might be. It is not clear that it will permit the prevention of that individual living in the city that had previously been his home. That is the point that needs to be made.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, as the last Back-Bench speaker, I am in the happy position of being able to rely on excellent contributions to this excellent debate by many here now. I associate myself with all that has been said by noble Lords vis-à-vis the appointment of the Minister and, indeed, his predecessor.

The few remarks I shall make are based around a sense, rather different from that of the noble Lord, Lord Morgan, that in this intensely difficult business of balancing public safety with individual liberty, this Bill reaches a reasonable outcome. There is no perfect answer. This is a balance we all grapple with, all the time, in all ages. None the less, I think, subject to one major limitation that I shall come to, that this is a reasonable outcome. Many aspects of it are arguable, and I may yet be persuadable in the debates to come, but I say that.

The noble Lord, Lord Hennessy, referred to the need to trust the security services, and I wholly agree with his quote from Karl Popper, which seems to me to be a very wise encapsulation of liberty. I think trust in the security services should go only so far. The old cliché of liberty requiring eternal vigilance is true, and the security services are overpressed and hugely pressured. I was at the meeting yesterday, which my noble friend Lady Hamwee referred to, where this young, born-and-bred Englishman told of his years under a control order with his life ruined, and for what? When the court eventually overthrew the order, the judge made extremely critical remarks about the basis upon which the order could have originally been imposed. One has to have that in mind.

Yet I fully accept that we should be proud of and grateful for the security services in this country. It is just that, in the modern age, the circumstances they grapple with are intensely difficult. The mobility and anonymity of modern life are enemies to security, and the technology that comes to our aid is also partly an abettor of some of the more gruesome plans that are hatched.

I would like to commend the House. Perhaps one should not be self-congratulatory, but it seems to me that the protection of liberty is particularly the job of this House. I do not think there is any denying that, understandably, the public are more easily persuaded in relation to public safety issues than in relation to individual liberties. We have seen examples of that quite recently, and it behoves us to recollect what the noble Lord, Lord Judd, said in an impassioned coda to his speech: human rights are not someone else's but ours. We characterise our society and culture by these great entrenched individual liberties. Our democracy is built around them, and therefore it is right that we should be extremely reluctant to go down the path of secret trials and the rest of it.

I am persuaded to go that way only because we had one plangent example of what can lie behind all this from my noble friend Lord Macdonald. It was about an intercept conversation that plainly reveals two people planning a grievous terrorist attack who cannot be brought to justice because of the inability of the court to hear intercept evidence. Yet if it is not taken with ultimate seriousness, and if not protected by exceptional provisions, such as this Bill provides, it could, and in some cases would, lead to ghastly public disasters. Although the freedom to go on living is the most precious liberty of all, in the liberty which protects that there is a great paradox, as my noble friend Lady Hamwee said: the protections we give to liberty head off disaster because they undermine the basis upon which extremism flourishes and can build.

My big reservation with the Bill is one that has been well aired by my noble friend Lord Goodhart, the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd. It is the fact that the Secretary of State is the person who first imposes one of these orders. I think that the noble Lord, Lord Hunt, said that that was fair enough because the Secretary of State is responsible for security. That is a point of view, but not one that I share.

The task of imposing one of these TPIMs is about as difficult as one can imagine. Given the bizarre circumstances in which that judgment has to be made, it seems to be, par excellence, one for a senior judge who is used to weighing evidence, has a nose for truth and falsehood, and whose experience will fit him or her to reach what are often pressured and speedy decisions, never forgetting that Home Secretaries are under the most intense pressure—we have two former Home Secretaries sitting here now. Very often, no doubt, they have 10 balls which are all urgent and important to juggle simultaneously and have to rely to a high degree upon their civil servants. I do not for a moment disparage any of those civil servants if I say that such a crucial decision is, par excellence, one for an experienced judge. If that reform was built into this Bill, I would be assuaged at the otherwise heavy intrusions it makes upon ancient liberties. At this time of night, I do not really want to say much more except to line up with those who feel that an annual renewal of these powers is, in all the circumstances, perhaps the better course.