Defamation Bill

Debate between Lord Phillips of Sudbury and Earl of Erroll

Tuesday 15th January 2013 Grand Committee

[Lord Phillips of Sudbury]

I simply wrap up my point by saying that I am anxious about having this paragraph in the amendment, because I think that it could give the wrong idea to those who have to interpret it in future. I would be wholly against a way of lodging a complaint that involved a formal legal process, even of a stripped-down kind, if I can call it that, because it would, I suggest, make remedy more or less impossible for the vast majority of people.

[The Earl of Erroll]

I shall make a couple of comments about Amendment 27, particularly after the remarks of the noble Lord, Lord Phillips of Sudbury. Given the expense of trying to track someone down on the internet and finding out who is who, it will be impossible to identify absolutely reliably everyone who logs on. Unless we put a chip inside everybody and log that, it will not work. There are too many ways of concealing who you are. The banks have enough trouble with their “know your client” procedures, so what kind of trouble will an internet service provider have? It is not realistic to be able to nail down identity over the internet at the moment in the way that some people think that you can.

The point about expensive resolution led me to think about what the noble Lord, Lord Allan of Hallam, said about alternative dispute resolution. The website operator needs somehow to know whether to take something down. If a claimant is not willing to reveal who they are, there may be a public interest reason for it to stay up and there may be support from other places for its staying there. Nominet is operating a successful service for alternative dispute resolution on domain name conflicts. Otelo—the Office of the Telecommunications Ombudsman—also works terribly well in resolving disputes in an inexpensive way. In fact, the industry in each case bears the costs and it is not expensive. I wonder whether it would be worth exploring that.

Amendment 27 is interesting because it could provide some of the information that would be the framework on which a judgment could be made. For instance, a website operator could apply and say, “We would like to know”, through the alternative dispute service. Personally, I think that going through the courts every time would be far too expensive for all the small organisations and ordinary people trying to defend themselves against something malicious that was online.

I was amused by the concept of whether or not regulations could be used maliciously. That is an interesting concept and it probably has wings, as well as legs. There is an old saying that regulations are for your enemies, and it is amazing how maliciously you can use them.

Protection of Freedoms Bill

Debate between Lord Phillips of Sudbury and Earl of Erroll

Thursday 15th December 2011 Grand Committee

[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.

Identity Documents Bill

Debate between Lord Phillips of Sudbury and Earl of Erroll

Monday 1st November 2010 Grand Committee

[Lord Phillips of Sudbury]

This group of amendments—Amendments 9, 10 and 11, in the name of the noble Earl, Lord Erroll, as well as mine—is partly probing and certainly simplifying. When I read Clause 4, I found myself completely baffled by quite a bit of it, especially subsection (3). Being a bit of an old lawyer warhorse, I just kept at it. I read it and reread it and I concluded that anyone suffering from insomnia should put subsection (3) by the side of the bed for 2 o'clock in the morning. If you read subsection (3) six times, I almost guarantee sleep. I shall read it for the sake of Hansard. It states:

“In subsection (2)(b) the reference to P or anyone else does not include, in the case of a document within subsection (1)(c), the individual to whom it relates”.

I may be getting daft—I notice assenting groans from the noble Lord, Lord Bach—but I have tried in these amendments to clarify what that means. I am encouraged to do that because I am following Clause 4(2)(b) in the Identity Cards Act. I suspect that the parliamentary draftsman was trying to make things clearer by pulling out subsection (3) rather than allowing the sense of it to follow on from Clause 4(2)(b).

In Clause 4(2)(a) and (b), we have a definition of what is called improper intention. That definition is, I think—and I have consulted the very helpful Bill team, and they agree—exhaustive of what improper intention is for the purpose of this very important clause. I do not see that paragraphs (a) and (b) are exhaustive of improper intention sufficient to base a prosecution under Clause 4(1). I am anxious that there should not be events of dishonesty around identity documents—the holding of them or whatever else. I do not want there to be loopholes where some clever barrister can say, “This may have been a dishonest act by my client but it is not within Clause 4(2)”.

My Amendment 10 would add a further paragraph which reads as follows:

“the intention of using or allowing or inducing another to use a document for any dishonest purpose”—

for any dishonest purpose. I cannot see why that much broader subsection can be offensive to the purport of the clause. Indeed, it may be argued—the noble Baroness may shortly argue—that my subsection renders superfluous paragraphs (a) and (b). If so, we have knocked out two paragraphs for the sake of one. On my reckoning, that is good going.

In another life, I was for 26 years Jimmy Young's legal eagle, trying to explain to the baffled British public a little bit about the law of our land. If the amendments do anything to make it a bit clearer, I think that that is a job worth doing. I beg to move.

[The Earl of Erroll]

My Lords, I put my name to these amendments because I, too, had read the clause and got myself into complete confusion, so I thought that anything had to be better. I started trying to unravel this in my mind, and given that this challenge fell on a sleepless night, I thought that it might be quite interesting to try it.

What the noble Lord, Lord Phillips, has just said is true. The essence of it all is there is no point in having these laws if you cannot actually catch people. If we leave a loophole here, there is no point to a lot of the Bill. People will possess false identity documents and we will not be able to lock them up or punish them for it, and what is the point of the whole exercise if we cannot? It is critical that we get this clause right.

I read the amendment with interest. I thought that if I put some plain English in, that might help. I worked out that if person P, who is basically the crook, nicks my driving licence, which is covered by the wording Clause 4(1)(c),

“an identity document that relates to someone else”—

in other words, it relates to me—we then have to look at what he uses it for. On the question of “improper intention”, I was interested by the word “establishing”, and I would like an answer about that. Clause 4(2)(a) talks about,

“using the document for establishing personal information”.

Does that mean that, having grabbed my passport or driving licence, person P, in impersonating me, is trying to get information about himself on to the database so that he can establish and build up a false identity on the database that will take over my identity,? In other words, is he changing my address to his own, and things like that? If he sticks to driving licences, that is probably easier in the first instance because the checks are lower.

That is what the word “establishing” could mean, but equally it could be used in the other sense of person P ringing up to check that it is indeed my address. I do not know which way round “establishing” is meant. Is it active or passive? Is the crook pushing or pulling the information? That ambiguity could be dangerous. The word may be meant both ways, but lots of people are allowed to establish my personal details. A policeman, for example, needs to do so when he stops me and finds out whether mine is a genuine address. I do not know which way round the word is meant.

Then we come to the next bit, Clause 4(2)(b), which says that the crook can use the document to try to verify personal information about himself. Why would the crook want to verify personal information about himself? It is not personal information about the crook if he has established a new identity for me; it is actually personal information about a fictional person who appears to have my identity. I can see that we are going to have great fun about what is “personal information” with regard to a stolen identity.

So, we get into the little problem about verifying the personal identity of a person who does not exist, but then we come to Clause 4(3). I rewrote this myself to say that the actions detailed in subsection (2)(b) are not an improper use if my driving licence—the identity document mentioned in subsection (1)(c)—is used by the crook, person P, to verify my personal information, the person to whom it relates. In other words, it says that the crook can use that document to find out information about me. Okay, big deal. I do not see why that is so dodgy. That is the one exception that does not matter one way or the other. If that is not the case, I am not really sure what subsection (3) means and I would love to know, but that, after a lot of tortuous back and forth and rewriting, is what I arrived at.

The only other thing that occurred to me just now about improper intentions is that it is an improper intention,

“to have in P’s possession or under P’s control”.

This is where the matter becomes critical, because I know that the word “possession” has huge implications in law. You are in possession of a car if you have the car keys, from the point of view of drunk driving, whether you have an intention of using those car keys or not. If someone else has your shotgun but does not hold a certificate, and they drive 100 yards to get it back to your house because you have just fallen ill and have to go to hospital, they are in possession of that shotgun at that point without a proper certificate. So, if someone takes your driving licence off you in order to verify something about you, they are in possession of your driving licence at that point. I do not know if there are any issues around that, but as I was reading this I suddenly started thinking, “Hang on, we’ve got possession issues here as well”.

The whole thing is a ghastly muddle, and anything that could be done to sort it out would be better. Hence I back the amendments of the noble Lord, Lord Phillips of Sudbury.

--- Later in debate ---

[Lord Phillips of Sudbury]

I am grateful for that, but I shall still come back to the point. The noble Baroness said that Clause 4 is a re-enactment of the provision in the Identity Cards Act 2006. This part of the clause diverges from the 2006 Act in a seriously unhelpful way. The changes mean that there has been a shift into subsection (3) of the language that is there. The noble Baroness did her best to explain it, but all I can do is to go back to the 2006 Act, which is better and clearer on the point. In withdrawing the amendment, I would ask the noble Baroness if she would think a little more about it before we come to the next stage.

I want to make one other point. The noble Baroness made the important point that my attempt to create in Amendment 10 through proposed new paragraph (c) a catch-all provision in terms of the definition of improper intention was unnecessary. However, she was less than categorical. I would be comforted if she and her advisers would put their thinking caps on and make sure that that is the case. I ask that because I am still worried that paragraphs (a) and (b), which provide the exhaustive definition of improper intention, would not catch circumstances where the Government would wish there to be an offence in terms of the possession of false identity documents. However, as I say, we are all reassured by the review that is to be undertaken in what is a very difficult field.

[The Earl of Erroll]

It may assist the Committee at the next of the stage of the Bill if I say that subsection (3), which the Government may look at again, is probably otiose. It is only an offence for person P, with improper intention, to have in P’s possession. The defence just stated was “not with improper intention”. A carer trying to collect a parcel has no improper intention. It means that either we have “improper intention” wrong or subsection (3) is otiose. I still believe that this should be taken back so that people can think about it.

--- Later in debate ---

[Lord Phillips of Sudbury]

Indeed he is. I apologise.

[The Earl of Erroll]

I thought we had leapt ahead of ourselves for a moment; it was great. I also put my name down to Amendment 19 because it is always important to have independent scrutiny. It makes people feel much happier and much safer. I do not see that in this case it needs to be very expensive; you do not need a huge office, a huge outside body or anything like that. Public confidence can otherwise be destroyed. Sometimes things go wrong, so it feels much happier having external independent scrutiny. We forget that at our peril.

Having someone reporting up the same chain of command to the same boss is never quite the same as getting a report straight out to Parliament. On something like this, which potentially involves civil liberties and citizens’ rights, it is very important to have a direct report to Parliament, which is outside the normal chain of command, just in case. It is not that I mistrust any of the people in the system; they are trying to do a good job under difficult circumstances, particularly as the politics of it are shifting and changing on a monthly basis. There is no bad will on my part. Rather, we should always do this as a matter of principle, and it is dangerous to start not doing it.

Something the noble Lord, Lord Phillips, read out reminded me of the phrase in RIPA,

“for the purpose of preventing or detecting crime”.

That was the general-purpose provision that was slotted into RIPA. We were told that the Act would apply only to serious and organised crime but it ended up with local councils using it for other things. At that point, everyone realised that we had a political problem on our hands because uses can change. There could be similar issues buried within the Bill that I remember noticing when I first went through it but then forgot about.