Justice: Evidence
Lord Rosser Excerpts(12 years, 11 months ago)
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Lord Henley
My Lords, it is not for me to pronounce on the problems that the group is having. As my noble friend knows from his distinguished service on this group, the membership has changed not once but twice over the last year or so. There are difficult issues to be addressed. I know that it came forward with one model, and there were problems with that, but I think my noble friend will accept that trying to get the right balance, to which I referred in my first Answer, between advantage, costs and risks is a very great challenge and one that we want that group to get right.
Lord Rosser
I am not clear from the Minister’s answer whether the Government have a view on this issue or not. In light of the remarks made by the Lord Chief Justice in relation to the ECHR decision to which the noble and learned Lord, Lord Lloyd of Berwick, referred, do the Government take the view that there appears to be no insurmountable obstacle in principle to the use of intercept evidence, or are our intelligence services still voicing significant concerns on this issue?
Lord Henley
There are obviously significant concerns about using intercept as evidence. It can be very useful as intelligence, but using it as evidence can create significant problems. We want to address those problems and make sure that we have got it right before we allow intercept to be used as evidence. That is why the previous Government set up the review under Sir John Chilcot and why we are continuing to look at the work that it is doing and looking forward to its report in due course.
Protection of Freedoms Bill
Lord Rosser Excerpts(12 years, 11 months ago)
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Lord Scott of Foscote
My Lords, I am in general sympathy with the objective behind this amendment but have some anxieties about the effect of subsections (9) and (12), which mirror one another in similar language. They seem to say that the question of whether a communication has been made with the intention of furthering a criminal purpose is to be determined in accordance with regulations or provisions made by the Secretary of State. Whether a particular communication is protected by privilege or that privilege is forfeited because the purpose of the communication was to further a criminal purpose is the sort of issue that could easily come up in legal proceedings before an ordinary court. On this notion that the Secretary of State could pre-empt that, I note the language,
“make provision for the determination (on an application for an”—
interception warrant, which I can understand—
“or otherwise)”.
That “or otherwise” seems to carry the power right through to legal proceedings where the question of privilege is an issue. I would like some elucidation on the intention behind these two subsections.
Lord Rosser
My Lords, I will be brief because the noble Baroness, Lady Hamwee, has gone over the thinking and reasoning behind this amendment, which, as she said, emanated from the Bar Council. She referred to the House of Lords judgment which appeared to hold that RIPA permitted the covert surveillance of meetings between defendants and their lawyers even though no express provision in the Act authorises it and such actions were regarded as contrary to the Police and Criminal Evidence Act 1984. The noble Baroness also referred to other developments, such as the undercover police officers who infiltrated protest groups and maintained their cover while fellow protestors were prosecuted and tried for offences. In one of those cases, I think I am right that significant non-disclosure of the officers’ role led to a number of overturned convictions and cases dropped against other campaigners. The Lord Chief Justice also expressed disquiet that an undercover police officer might have been party to legally privileged communications between the defendants and their lawyers. I suppose that the concerns of the Lord Chief Justice were confirmed in the case related to DC Boyling when it was revealed that he had indeed attended meetings with the defendant and his solicitor.
As the noble Baroness said, the Government made a partial response to the House of Lords judgment on the McE case by making two orders, one relating to direct surveillance and the other to covert human intelligence sources. Clearly, as the noble Baroness said, that has not addressed what the Bar Council regard as the fundamental problem. In making those comments, we want to hear the Government’s response to this amendment. Clearly, there are concerns—probably highly justifiable ones—about others having access to communications between a defendant and his lawyers. One suspects that it is perhaps a case of recent developments leading to RIPA being interpreted in a way that was probably not intended. We want to hear the Government’s response since they may well argue—we wish to hear the case—that the Bar Council amendment would not be appropriate. Equally, it might turn out that they will accept it.
Lord Rosser
“Clarification of unlawful interception under RIPA
(1) After section 2(7) of the Regulation of Investigatory Powers Act 2000 (meaning and location of “interception” etc) insert—
“(7A) The fact that the intended recipient has collected or otherwise accessed such stored communication, shall not affect the definition of communication in transmission under subsection (7).””
Lord Rosser
My Lords, this amendment is a response to calls from both the Director of Public Prosecutions and the former Assistant Commissioner of the Metropolitan Police to clarify the law in respect of the illegal interception of voicemail messages. The amendment seeks to clarify the definition of interception in the context of Section 1 of RIPA to mean that those who access the voicemail of individuals without their knowledge or consent will be liable to prosecution, even if the intended recipient has already accessed the messages.
In his evidence to the Select Committee on Culture, Media and Sport on 24 March this year, the then acting Assistant Commissioner of the Metropolitan Police, John Yates, stated that the reason he had initially advised the committee in September 2010 that only 10 to 12 victims could have cases brought for them in relation to alleged phone hacking was the,
“very prescriptive definition of Section 1 of the Regulation of Investigatory Powers Act”,
which deals with the illegal interception of voicemail messages. Of course, we now know that there are potentially thousands of cases where voicemail messages have been accessed and listened to without authorisation. However, to prove the offence of interception under the section, Mr Yates maintained that the prosecution had to show that a voicemail message had been intercepted prior to it being listened to by the intended recipient. In response to the evidence given by Mr Yates, the Director of Public Prosecutions wrote to the Select Committee on Culture, Media and Sport in April of this year to clarify the opinion of the Crown Prosecution Service on this issue. He told the committee that in 2006 in relation to the investigation of, I think, Messrs Goodman and Mulcaire, the CPS initially advised the Met that:
“The offences under Section 1 of RIPA would, as far as I can see, only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this”.
Furthermore, the DPP stated that the view of the CPS at the time was that it regarded the question of whether or not the unauthorised accessing of a voicemail message after the recipient has collected the message is a RIPA offence as a difficult legal issue which had not been tested or authoritatively determined; that there were tenable arguments either way; that the observations made by the noble and learned Lord, Lord Woolf, in 2002 of NTL Group Limited versus Ipswich Crown Court pointed to a narrow view; and that it approached the prosecution on the basis that if the issue of interpretation arose, it could be preferable to proceed on a narrow interpretation, thereby avoiding the necessity of having a contested trial.
The letter from the DPP in April noted the following points. First, no concluded or definitive view was ever reached, and from the outset the head of the CPS special crime division indicated that the interpretation is,
“very much untested and further consideration will need to be given to this”.
Secondly, that,
“the prosecution was never required to, nor did it, articulate a definitive view of the law … in the case of Messers Goodman and Mulcaire”.
Thirdly, in his view,
“the legal advice given by the CPS to the Metropolitan Police on the interpretation of the relevant offences did not limit the scope and extent of the criminal investigation”.
That final point is based on the advice given by the CPS to the Met that the case could have been prosecuted under other offences, including the Computer Misuse Act. However, the Met was apparently reluctant to bring a prosecution under that Act. It has been suggested that that was for tactical reasons, but I do not know whether that was the case. Whatever the situation may be, it does not detract from the need to clarify the law on arguably the most relevant offence under RIPA. We believe that a clarification in the law is needed to make it clear that an offence of illegal interception of voicemail messages applies regardless of whether that message has been listened to by the intended recipient. Our amendment would provide that clarification and I hope that the Minister will take this opportunity to provide such clarification. I beg to move.
Lord Henley
My Lords, the noble Lord, rightly, is looking for a degree of clarification, as suggested in his amendment. I do not think that we need clarification, and it might be helpful if I set out the case.
First, let me be clear that phone tapping or hacking is illegal. As the noble Lord made clear in his opening remarks, it remains illegal—I want to emphasise this—even if the intended recipient has access to that communication. I am aware of some of the concerns and the point was addressed directly by the DPP in the written evidence to the Home Affairs Select Committee in October last year. He stated that his advice to the police and the CPS would be to assume that,
“an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it”.
The recent Home Affairs Select Committee report, following its inquiry into unauthorised tapping or hacking of mobile communications, signified the particular importance of Section 2(7) of RIPA and that not enough attention had been paid to its significance. The committee did not recommend that Section 2(7) be amended. As Members of the Committee will be aware, we also have the Leveson inquiry, which is looking at a number of issues related to phone hacking. The first part of the inquiry, which is already under way, is focusing on the role and conduct of the press. The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers and the way in which management failures have allowed it to happen. The original police investigation and its failings, the issue of corrupt payments to police officers, and the implications of all this for relations between police and the press will also be considered as part of the second part of that inquiry.
As the noble Lord will be aware, there are a number of other inquiries and investigations in hand and the police investigation into allegations of phone hacking continues, which I referred to in the Chamber only the other day in answering a Question. We believe it to be most appropriate, which I think the noble Lord would accept, to await the outcome of these various inquiries to know just what has happened, and so on, and to examine the conclusions before considering any changes to the law in this area. Further, we consider that the meaning of Section 2(7) is clear and that there are sufficient penalties in place to deal with offences of unauthorised interception. I refer the noble Lord back to the advice of the DPP to the CPS prosecutors. I hope that the noble Lord will accept that that deals with his points and that it is probably best to wait for the outcome of all those reports before he, we or anyone goes further.
Lord Rosser
My Lords, I thank the Minister for his response. I am not as convinced as he is that the present legislation is entirely clear because the events to which I referred would suggest that in certain fairly key quarters there appears to be some confusion over the current position. I do not mean confusion as far as the Minister is concerned, but I did refer to the police and the evidence that had been given. I am not entirely surprised that the Minister made reference to inquiries currently being undertaken. If I can take it from what he said, which I am sure I can, if those inquiries suggest that there is any lack of clarity in the present legal position, or even if the inquiry does not think there is a lack of clarity but nevertheless it would be helpful if the wording in the legislation were firmed up so that no one else could be in any doubt, that is the road that the Government will go down to end any confusion there might be on anyone’s part. On the basis that the Minister agrees that that will be the Government’s response—
Lord Henley
I do not know whether the noble Lord wants me to intervene to confirm that that is exactly the case. Obviously, we are awaiting the results of those inquiries, and it would be wrong for us to jump before that. Whatever they recommend will be something that the Government will have to consider with great care.
Protection of Freedoms Bill
Lord Rosser Excerpts(12 years, 11 months ago)
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The Deputy Chairman of Committees (Lord Haskel)
I have to tell your Lordships that, if Amendment 85 is agreed, I cannot call Amendments 86 to 88 because of pre-emption.
Lord Rosser
My Lords, we have four amendments in this group: Amendments 86, 89, 93 and 96. Amendments 86, 89 and 93 would simplify requirements for consent for the processing of biometric information. In particular, Amendment 86 would establish an opt-out rather than an opt-in system and remove the requirement for both parents to consent; instead, it would require notification from just one parent to withdraw consent. Amendments 86 and 89 remove the current provision allowing children of any age to override parental consent, and instead permit only children above the age of 16 to object. Amendment 93 makes consequential changes to requirements for parental consent while—although I will leave this to the end—Amendment 96 establishes a new duty upon schools to consult the views of teachers, parents and pupils before introducing biometric recognition systems into schools.
Our amendments in this group, as I have said, seek to simplify requirements around consent for schools and to prevent new rules from rendering costly, high-tech equipment in schools defunct. There are apparently no official figures on how many schools use biometric systems, but there are estimates. There was an estimate in a House of Commons Library note earlier this year that 30 per cent of secondary schools and 5 per cent of primary schools use them. Perhaps the Minister could tell us what he thinks the figures are.
The Home Secretary’s description of the Bill's provisions as a double lock on the processing of biometric information in schools is a tellingly accurate reflection of the regulatory bulwark that schools will in future come up against in order to use existing biometric processing systems. By requiring both parents of every child to provide written consent, the Government are creating a potential bureaucratic nightmare for schools that use these systems. In the words of the Association of School and College Leaders:
“What is proposed here is a very burdensome and bureaucratic new regulation that will address no significant problem. In short, it is exactly the kind of legislation that the present government promised to repeal, not enact”.
Lord Henley
My Lords, my noble friend Lady Hamwee suggested that I should not talk about feed-in tariffs and solar panels, and I am tempted to follow her suggestion on that. I used to speak a great deal on those issues in my previous job, but I do not often do so now that I am in the Home Office. I am not sure that they are quite relevant to this debate. Possibly we ought to have a new award for relevance in amendments—we could call it the Lord Rosser award for relevance—and I could congratulate the noble Lord on winning the award on this occasion for bringing in feed-in tariffs and solar panels.
Lord Rosser
I am sorry if the Minister could not understand the point, but I quoted from one of the leading providers of this technology in schools who said that there had not been proper consultation or clear thinking about the consequences of the new policy. My point was that that lack of proper consultation or clear thinking about the consequences of a new policy seems to have become a feature of this Government, because that is precisely what happened with the new feed-in tariffs. I am sorry if the Minister cannot understand the relationship between the two.
Lord Henley
My Lords, as regards consultation, we consult till the cows come home in this department and every other department, and I am distinctly happy about the amount of consultation that has taken place on this issue. We will move on now from feed-in tariffs and solar panels and get on to the gist of the amendment.
My noble friend Lord Lucas is obviously not completely convinced that there is a need for parental consent at all, but accepts that he could be persuaded as long as, as I understand him, it is not overburdensome. That point is probably behind the amendments from the noble Lord, Lord Rosser, and others. By the way, the noble Lord, Lord Rosser, did ask in passing for confirmation of the figures he used, and I can confirm, if I heard them correctly, that he is broadly right. Our figures are that some 30 per cent of secondary schools and some 5 per cent of primary schools are making some use of biometric systems for dealing with matters which, again one ought to stress, are largely related to access to school dinners, libraries and that sort of thing—so not major matters that affect them in other ways.
My noble friend obviously needs a degree of persuading about these matters. It is probably best if I go through the amendments in the appropriate order. I will deal with them in an order that I will take rather than as they are set out, but possibly I will leave Amendment 85, the first of my noble friend’s amendments, which even he described as being garbled; it is possibly best if I say little about that. I think my noble friend will understand why I take these a little out of order. I will start with Amendment 88.
Amendment 88 would have three consequences. First, it would obviously narrow the definition of who is a parent for the purposes of these provisions. Secondly, it would change the scope of the requirement for consent in that only one parent will need to consent. Thirdly, it seeks to introduce legal protection for schools and colleges where a child’s biometric information is processed beyond the control of that school or college. I will begin by addressing the first and third effects of that amendment.
For the purposes of these clauses, a parent means the child’s mother, father or any other individual who has parental responsibility for the child. Where it is not possible to obtain consent from any such persons, the parent is the person who cares for the child, unless the child is accommodated by a local authority or some voluntary organisation, in which case consent will be needed from that authority. My noble friend’s amendments obviously narrow this definition to include only individuals with parental responsibility. This would mean that, where there is no individual with parental responsibility who is able to consent, a school or college would be able to process a child’s biometric information without any person providing consent. I am sure that is not my noble friend’s intention, and he would probably want to adjust his amendment if he comes back to it—and I see my noble friend nod. The Government believe that all children, whatever their care arrangements, deserve the same level of protection in relation to the use of their personal information by a school or college. That is why we believe it is right that the definition of a parent goes wider than that suggested by my noble friend. Again I see my noble friend nod, and if he wants to come back to that he will no doubt amend his amendment.
The third element of this amendment seeks to provide protection for schools and colleges where a child’s data are processed outside of the control of the school or college. I know that my noble friend is concerned that these provisions should not apply when pupils access commercial websites or software systems that use face recognition to control access. I can give reassurance to my noble friend that the provisions in Clause 26 cover only the processing of biometric information that is carried out by, or on behalf of, the school or college.
Let me move on from Amendment 88 to the alternative approaches suggested by my noble friend in Amendments 85 and 87. It is also appropriate to consider here Amendments 86 and 89, from the noble Lord, Lord Rosser, which address a similar point and which I think my noble friend said he possibly preferred to his own. All those amendments seek to adopt a different approach to consent. At their most radical, they seek to replace the opt-in arrangement provided for in the Bill with an opt-out process. As a variant of this, they seek to provide for consent to be given by a single parent. Given the sensitive nature of the data involved, a positive decision should be made by both parents. This approach would afford them the opportunity to act on any concerns that they may have about the use of their child’s biometric information. In the vast majority of cases I would expect parents to discuss the issues between themselves and reach some agreement. As those of us who are parents will know, that is not always necessarily possible but, in the main, parents can reach that conclusion among themselves.
Lord Henley
I accept that there can be a problem with inertia. It is what one might refer to as the “cheque is in the post” syndrome. People say that they are doing things and they do not. I suspect that we have got it right, but I am more than happy to have a further look at this if the noble Lord thinks that there will be concern over that. But this is something that schools are already doing a great deal about in terms of consulting or talking to their parents, and it is something that schools are used to. But perhaps we could talk about that at some later stage or between now and another stage.
Lord Rosser
The Minister has raised a number of issues, but could he confirm that under the Government’s proposals a child of five could say no, even though the parents had said yes, and it would be the view of the child of five that prevailed? If a 15 year-old agrees and one parent says no and one says yes, will the Government then seek to uphold the right of the 15 year-old? Also, he said that under my proposal the 15 year-old would be dragged kicking and screaming. Could he just confirm that school teachers are not allowed to use force against pupils, or has the government policy changed?
Lord Henley
Government policy has not changed, and the noble Lord will accept that the words I was using were metaphorical.
Lord Henley
Careless words they may be, as the noble Lord is saying, but I will go on using them. The simple fact is that he was suggesting you would force a child to be registered. How is he suggesting that that could be done other than by dragging the child kicking and screaming? We think that it is right at any age. I think that it would be rather unusual for a child of five to say that he was not going to do something when his parents insisted that it should be done.
Lord Rosser
“(1) The Secretary of State must establish an independent inquiry into the use of surveillance camera systems in England and Wales.
(1A) Having considered the recommendations of that enquiry, and following a report on those recommendations to Parliament, the Secretary of State must prepare a code of practice containing guidance about surveillance camera systems.”
Lord Rosser
Amendment 99 would place a duty on the Secretary of State to commission a full independent inquiry into the use of surveillance camera systems in England and Wales, as recommended by the House of Lords Select Committee on the Constitution, which also recommended statutory regulation. Amendment 110 would require a similar inquiry before any steps were taken to extend the code of practice into the private sector, as provided for by Clause 33(5)(k).
In its evidence to the Public Bill Committee, the Association of Chief Police Officers questioned the assertion that there are 4.2 million CCTV cameras in the UK, as is commonly cited, estimating that the figure was much closer to 1.8 million. Such wildly different estimates indicate the lack of information that exists on the extent and nature of closed-circuit television cameras and surveillance systems in this country. Where real evidence and information are lacking, misinformation will often move in to fill the gap.
The code of practice that the Government seek to introduce would place additional regulatory burdens on cash-strapped local authorities that could see a reduction in the use of CCTV technology and in the detection and apprehension of crime by the police. Yet a fundamental assessment of the extent and varying nature of CCTV use in the UK and its value has not been undertaken. My noble friend Lady Royall of Blaisdon, whose name is also on the amendment, visited Stevenage last month to see the hugely impressive system developed by the council there for the safety and security of residents. The idea that these surveillance systems should be targeted for further regulation is surprising.
Lord Henley
The noble Lord has me there at the moment because I cannot assist him. We will be discussing further commissioners in due course. As regards the number that are registered, the noble Lord is ahead of me because he has seen that answered by one of my predecessors. I prefer to write to my noble friend about the details of his inquiry. Perhaps we can have further discussions between now and Report.
Lord Rosser
My Lords, the Minister said that his concern is about delay, and I will come back to that in a moment. If that is his concern, it does not explain why he does not accept Amendment 110, which relates to the private sector and those who may be covered by Clause 33(5)(k), since there is no intention at the moment of introducing it into these areas, and therefore it would be possible without causing a delay to agree to an inquiry there. I take it that in view of the fact that the Minister has not accepted it in relation to Amendment 110, it is a fundamental objection to an inquiry, not simply about delay, because Amendment 110 would not result in a delay.
Lord Henley
That is not the only aspect. There is also the cost. The noble Lord has not said who is going to pay for this inquiry.
Lord Rosser
If the Minister would care to tell me how much he thinks it is going to cost, perhaps we could discuss that issue and look at some of the other things that the Government are spending money on.
Our concern is that the code of practice—when it is drawn up, and we have not seen it yet—will act as a deterrent and prove to be something of an exercise in bureaucracy and additional cost. Additional cost is obviously an issue that is of considerable concern to the Minister. We do not sense that this Government look particularly favourably towards CCTV and that that may be one of the motives behind this proposal. We do not know, and the Minister has not told us, what the code will contain or what its impact will be on the use of CCTV. He has remained silent on that issue. The advantage of an inquiry is that it would show the extent or otherwise to which CCTV is being abused, and the Minister referred to that, so clearly he considers it an issue. It would also identify quite clearly the advantages and disadvantages of CCTV and what it has achieved, because some of us think that it has achieved a not inconsiderable amount. At least when the code was being drawn up, it would be drawn up against the background of a proper inquiry having taken place and looked at some of the allegations that are made. Therefore the code would be relevant and would address hard evidence instead of views or perceptions, and it would also make sure that the code would not in any way go over the top. That is why we are putting forward this proposal.
We note that the Minister has rejected it. He said that it was on grounds of cost as well as delay and had to agree that Amendment 110 would not cause any delay. Our argument is that when he draws up his code of practice, it may well lead to additional costs and a reduction of CCTV in areas where it would be beneficial for it to continue. However, we note what the Minister said. I will not pursue that matter any further at this stage, and I beg leave to withdraw the amendment.
Lord Rosser
“Independent inquiry into use of investigating powers under RIPA
(1) The Secretary of State must establish an independent inquiry into the use of investigatory powers under the Regulation of Investigatory Powers Act 2000.
(2) The inquiry will examine in particular the use of directed surveillance and possible limits to its use.
(3) The inquiry will examine possible exemptions to the Act relating to the under-age sale of alcohol and tobacco and anti-social behaviour.
(4) Recommendations from that enquiry shall be reported to Parliament.”
Lord Rosser
This amendment relates to investigatory powers under the Regulation of Investigatory Powers Act 2000. On reading the Government's impact assessment, one could perhaps be forgiven for being a little puzzled about the need that Clauses 37 and 38 seek to address, because the assessment says:
“The coalition is committed to stop local authority use of RIPA … unless it is for serious crime and approved by a magistrate”.
It goes on:
“This stems from perceptions that local authorities have misused RIPA powers particularly in relation to low level issues”.
Thus we appear to see in this Bill that the Government are happy to spend money on the basis of perception, as their impact assessment states, rather than any proven need—despite their stating that money is in short supply. The cost of judicial approval for local authorities to use powers to gather communications data and undertake direct surveillance is apparently £250,000 a year, according to the Interception of Communications Commissioner. Yet we have a situation where the Government claim that they are acting to address public perception.
In his evidence to the Public Bill Committee as head of the independent Review of Counter-Terrorism and Security Powers, the noble Lord, Lord Macdonald of River Glaven, while supporting the requirement for judicial review, stated:
“The overwhelming preponderance of evidence gathered by the review showed that local authorities were using their powers quite proportionately and in quite important areas of business”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 27.]
The Interception of Communications Commissioner stated in his evidence that judicial review is,
“wholly unnecessary and will cost money”.
He continued that he had,
“audited a very large percentage of the applications over the last six years and there is simply no evidence of abuse, so there is no problem on which to spend £250,000 a year”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 37.]
In the main, these powers are used for investigating matters such as the sale of alcohol and tobacco to minors, antisocial behaviour, trading standards breaches, serious fire safety breaches and such issues. The amendment proposes that the independent inquiry that it provides for should look at exempting the RIPA powers in relation to underage sale of alcohol and tobacco and antisocial behaviour from this Act because they are areas where those powers are most frequently used and where the adverse impact and additional costs under the Bill will be most keenly felt. We are not opposed to the principle of judicial review, since this provides a check on executive power. However, we are opposed to spending money unless it addresses a clearly identified problem, backed up by hard evidence, when in other areas difficult choices are having to be made about cuts to vital services.
Against that background, Amendment 114 places a duty on the Secretary of State to commission an independent inquiry into the use of investigatory powers under RIPA. Amendment 114 does not require an inquiry before the commencement of Clauses 37 and 38. It would not delay implementing this part of the Bill, if the Government are determined to introduce it as soon as possible. It would, though, provide proper hard evidence of the areas, if any, that are in need of regulation—hard evidence which, at the moment, appears to be somewhat lacking. I beg to move.
Lord Henley
My Lords, I am grateful for that intervention from my noble friend Lady Miller.
The measures in Clauses 37 and 38, together with the changes that we propose to make through secondary legislation, will deliver the coalition commitment to limit local authority use of RIPA—a commitment we made when the coalition came into being following the last election. The Bill also gives effect to the conclusions of the counter-terrorism review which was published in January. That review recommended two changes to the use of RIPA powers by local authorities.
First, these clauses will require that the exercise of RIPA powers by local authorities be subject to prior judicial approval. The second change, which will limit local authority use of directed surveillance to the investigation of offences which carry a maximum six-month sentence, will be implemented through secondary legislation made under RIPA. That will ensure that direct surveillance cannot be used to investigate relatively low-level matters, such as littering, dog fouling and schools enrolment, while still allowing it to be used against large-scale matters such as fly-tipping or waste-tipping, extensive criminal damage and serious or serial benefit fraud cases.
In response to representations received during the review, we have decided to make an exception to the seriousness threshold for offences relating to the underage sales of tobacco and alcohol. The investigation of those offences relies heavily on the use of directed surveillance and so in these circumstances the review concluded that it was appropriate to have a limited carve-out so that trading standards officers could continue to take effective action against businesses which seek to flout the law on age-related sales.
The conclusions of the counter-terrorism review were endorsed by my noble friend Lord Macdonald, who provided independent oversight of the conduct of the review. However, the amendment seeks a rather wider review of RIPA. I will say straightaway that, although the Government agree that it is essential that people’s privacy is protected from any unnecessary or disproportionate access by public bodies discharging their duties, this is precisely why RIPA was introduced, debated and passed by Parliament. And it is precisely why the way it is working is kept under constant review—not just by the Home Office but by the independent commissioners who report to the Prime Minister and publish annual reports which are laid before Parliament.
In bringing forward the current proposals to limit local authority use of RIPA, we are responding to public concern about a specific area in which the law operates. The measures are intended to restore confidence and ensure that any fears of future misuse are unfounded. But there is no well-founded indication that there is a need for much more fundamental reform of RIPA. Indeed, any regulatory regime would need to be built on precisely the same principles and contain the same human rights safeguards as RIPA is built on.
No one should be complacent about how our right to privacy is safeguarded. The measures before us come from one review and were endorsed by a public consultation. We need to get on and deliver them, but I put it to the noble Lord that another review before we have delivered the recommendations of the first would be premature and no doubt expensive—I do not know how many other reviews he will propose during the passage of the Bill. We will continue to monitor how the new arrangements are working in practice and adjust our approach if necessary. The developments will be reported on also by the independent RIPA commissioner, whose published reports, as the noble Lord will be aware, are laid before Parliament each year. We are confident that the measures in the Bill, together with the associated secondary legislation introducing the seriousness threshold, will prevent local authorities using RIPA in a way that undermines public confidence. Therefore, I hope that the noble Lord will feel able withdraw his amendment.
Lord Rosser
My Lords, in drawing up the amendment, which the Minister said was quite wide-ranging in relation to RIPA, we were seeking to address in particular that part of the Act relating to local authorities, since the coalition has made it—and the Minister has reaffirmed it—one of its objectives. It is stated in the impact assessment that the provision stems from perceptions that local authorities have misused powers rather than, apparently, hard evidence. Bearing in mind the Interception of Communications Commissioner’s view that expenditure of £250,000 will be incurred on something that is apparently regarded, certainly as far as local authorities’ use of the powers is concerned, as a perception, it did not seem unreasonable to suggest that there should be an investigation to get some hard evidence so that we might all be clear on precisely what problem we were seeking to address.
However, I have taken note of what the Minister has said. We will reflect further on the matter. In the mean time, I beg leave to withdraw the amendment.
Phone Hacking
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Lord Henley
My Lords, my noble friend is right when he quotes the figure of 5,795 people who the police have said may—I stress, may—have had their phones hacked. The police stressed that at this stage they cannot give a figure, which is why I gave the other figure of 1,800 people who the police have identified as potential victims, and the 600 with whom they have been in contact. I note what my noble friend said about setting up some independent body as a result of these matters. At this stage, I cannot possibly comment and we must await the outcome of the inquiry by Lord Justice Leveson. When that happens, I am sure that we will act.
Lord Rosser
My Lords, when giving evidence recently to your Lordships’ Communications Committee inquiry on the future of investigative journalism, the Culture Secretary, Mr Jeremy Hunt, said that newspapers are likely to come under the auspices of a new regulatory body that is,
“better at enforcing standards of accuracy”,
than the Press Complaints Commission. Can the Minister confirm that this is now the policy of Her Majesty's Government?
Protection of Freedoms Bill
Lord Rosser Excerpts(12 years, 11 months ago)
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Lord Rosser
“Alteration of test for barring decisions
(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert—
“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after paragraph (b) insert—
“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert—
“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.””
Lord Rosser
I shall speak to the two amendments in this group. Amendment 68 would reverse provisions to restrict automatic inclusion on the barred list and introduce a right of appeal for the individual to be taken off the list. It seeks to take account of the recommendation of the Joint Committee on Human Rights that there should be a right of appeal against all barring decisions.
Under Amendment 69, an enhanced Criminal Records Bureau check would reveal whether an individual had been barred from working with vulnerable adults or children. After the lengthy debate that we have just had on the first group of amendments, there is inevitably some degree of repetition on this group but I will endeavour to be reasonably brief.
We have heard that, as a result of the proposed restrictions to the definition of regulated activity, individuals working under supervision with children or vulnerable adults will no longer require CRB checks or have their barred status revealed. Therefore even if the employer chooses to apply extra caution and request an enhanced CRB check on an individual, it will not state whether that individual has been barred by the Independent Safeguarding Authority as this information is only included for applicants in regulated activity. No doubt the Minister will say that an enhanced CRB check will give all but the barred status, meaning that prospective employers will have access to the police records which would have led to the barring decision. However, it seems somewhat illogical that an employer should have access to all but the one crucial piece of information, which is whether experts believe that there is something sufficient to justify preventing an individual from working with vulnerable groups.
First, however, barring decisions are not just based on police records. They take into account information from past employers and they analyse allegations that may not have been pursued with the police. That is especially important information when it comes to work with children and adults because of the well known problems with evidence and the particular vulnerabilities of witnesses and victims. An example of this is that the ISA may consider a situation where an allegation has been made by a dementia sufferer but was not reported to the police because of the perceived reliability of the evidence. An enhanced CRB check on a volunteer in a care home would not alert the employer to this. Secondly, in not granting all registered employers access to ISA decisions, the Government’s proposals could in fact lead to greater prejudicial and unfair rejection of candidates, as employers will be expected to use their own judgment to assess the relevance or seriousness of the information in front of them rather than utilising the expert opinion of the ISA.
So far as Amendment 69 is concerned, in addition to the restrictions on the scope of regulated activity under Clause 67, individuals who have committed a serious offence will no longer automatically be placed on the barred list. Instead, they will be barred only if they have worked or are deemed likely in the future to work in a regulated activity. An individual who has committed a serious barring offence will no longer be barred from gaining close contact with children and vulnerable adults as, for example, a football coach, provided that they are subject to some form of supervision. As has already been said, the crux of the problem is secondary access, and the upshot of Clause 67 is that individuals convicted of a barring offence will be able to gain access to and build up trust with children and their parents which could be exploited. If there are grounds to bar an individual from working with children or vulnerable adults unsupervised, that individual should not be undertaking work in regular close proximity with children and vulnerable adults regardless of whether it is supervised or unsupervised, paid or unpaid.
The NSPCC appears to take a similar view, because the Government’s own review on the vetting and barring scheme states that:
“The NSPCC’s view is that some offences against children should always be grounds for barring”.
Amendment 68 would erase the new distinction among convicted offenders for placing on the barred list. It would also introduce the right to a full merits appeal against barring decisions, with the right to present evidence and call witnesses at an oral hearing, thus reflecting the principle of the High Court decision on the Royal College of Nursing v the Secretary of State for the Home Department and the JCHR recommendations that individuals should have the right to a full merits hearing before an independent and impartial tribunal. The Government’s proposals as they stand fall short of providing a full merits appeal for individuals included on the barred list. We believe that providing this, alongside automatic barring, reflects the correct balance—we as well as the Government will use the word—between providing on the one hand adequate protection for vulnerable groups against interference with their right to life, their right not to be subjected to inhuman or degrading treatment, their right to physical integrity and their right to respect for their private life and dignity, and on the other hand the protection of individuals’ rights to privacy and a fair hearing.
Lord Henley
I think that I can agree with the first point made by the noble Baroness entirely. As for the second point, that is what we have to get right, and that is why we are going to consult and produce the appropriate guidance. But that is not something that we can get down in the Bill.
Lord Rosser
My Lords, I noticed the response that the Minister gave to the right reverend Prelate, and I think that the short answer is that the concerns expressed by the right reverend Prelate would be largely addressed through the acceptance of the amendments that we have tabled and that the Minister has declined to accept.
The Minister raised the issue of the appeal. Clearly, the Government’s intentions about appeals do not appear to meet the recommendations of the JCHR. He raised the query that, under the Government’s proposal, people could appeal when informed of the ruling or the decision and before the implementation. I should just make clear our stance, which we have taken throughout—that we want people automatically barred if they commit a serious offence and then to appeal if they feel that the decision to bar them has precluded them from taking up a particular position. We come at it from a different angle from that of the Minister.
There is clearly a considerable difference between us, and it came out in the first group of amendments that we discussed and again in this group. We will need to reflect on the response that the Minister has given before deciding whether to pursue the specific issue again on Report. In the mean time, I beg leave to withdraw the amendment.
The Lord Bishop of Newcastle
My Lords, I, too, wish to register some anxieties about the proposals, and support some of the comments made by the noble Baroness, Lady Heyhoe Flint. As we know, under the Bill only one CRB certificate will be produced and provided to the individual concerned. That is a significant change to the current well established practice whereby a replica certificate is provided to the appointing body. The report that made the recommendation was based largely on the difficulties caused when inaccurate information has been disclosed. However, the Criminal Records Bureau, as the noble Lord, Lord Addington, said, reports that inaccurate information has been disclosed in just 0.07 per cent of cases. I do not believe that such a small number of admittedly distressing cases could justify such a significant change. The CRB also says that many more certificates are returned marked “undeliverable” when addressed to the applicant than when they are addressed to the registered body. If only one copy is to be sent to the applicant it risks, at the very least, further delay in any appointment process. Are we as registered bodies to be totally dependent on the individual—volunteer, in our case—concerned?
I am anxious that the Bill might miss the opportunity to set up a safe and workable system. I speak for safety in our churches, and my belief is that appointing authorities need to have access to enhanced CRB disclosures for all those who will have significant contact with children or vulnerable adults, not just those who are engaged in regulated activity as narrowly defined in the Bill. Repeated abuse tragedies highlight the importance of carefully scrutinising those who seek to work with children. We have a very particular responsibility in the church to ensure that robust and safe procedures are in place for recruitment and afterwards. Access to CRB disclosures is not the only element in the process, but it can be crucial in a small number of cases. I, too, hope that the Minister might think again about this particular part of the Bill.
Lord Rosser
My Lords, we also have an amendment in this group, Amendment 75A, the thrust of which is very much in line with the amendment in the names of the noble Lord, Lord Addington, and the noble Baroness, Lady Heyhoe Flint. The effect of our amendment, too, is to delete the Bill provisions to remove the requirement for the CRB and enhanced CRB certificates to be sent directly to the employer as well as the employee, and instead to provide for certificates to be sent to employers two weeks after being sent to the individual applicant, unless that applicant has lodged an appeal.
As has been said, currently organisations and companies providing work with children or vulnerable adults receive a copy of the regular or enhanced CRB check when it is sent to the individual applicant. The Government propose to scrap these existing provisions on the grounds that they do not leave individuals with a chance to appeal or query information on the record. Our view is that the Government’s proposed changes would place unnecessary burdens on organisations, would damage the voluntary sector—as has been said, by potentially deterring volunteers with irrelevant criminal convictions from applying—and would also put children and vulnerable adults at greater risk by creating loopholes in the system that would be open to exploitation, to which reference has already been made.
Currently of course, many larger organisations process their CRB checks centrally through qualified professionals. The CRB checks are sent directly to the central departments at the same time as being sent to the applicant, which enables swift processing of applications and minimises delays in employment. However, there are now concerns about the additional resources and time that will be spent chasing CRB checks with the individual under the provisions of this Bill. Perhaps more importantly, by requiring the individual applicant to submit their CRB certificate to the organisation, there is major concern within the voluntary sector that the Government’s proposed changes could deter volunteers with minor and irrelevant criminal records from coming forward.
The Minister has stated that the Government envisage that the applicant would simply be informed of the central address to which they should send their certificate and would pass it directly to them. However, that will not be the case in all organisations and will only add to the delay in processing applications. On top of that, it still does not address the point that, if the CRB check is revealed to the individual before being submitted to a central bureau in the organisation, it may prompt the individual—wrongly—not to proceed with the application on the basis of wrong assumptions about the relevance of the information on that record.
Finally, we believe that changes to the CRB disclosure process will create a system that is more open to exploitation from the small minority of individuals who should not be seeking access to children and vulnerable adults. Organisations such as Fair Play for Children and sports associations all point to examples of the extent to which predatory individuals will go to manipulate and exploit procedures in place. I will not repeat any of those, since the one I have is the same as the one referred to by the noble Baroness, Lady Heyhoe Flint.
The Government’s amendments today propose to address the problem by sending an electronic notification to the employer, once the certificate has been issued to the applicant, where the certificate is clear of any previous convictions or police information—as is the case, as has already been said, in 92 per cent of cases. However, we do not believe this goes far enough in addressing the problems that have been identified. Organisations will still have to chase certificates and delays will still occur in the 8 per cent of disclosures that are not clear. Applicants will still be required to submit certificates themselves, and therefore the potential to deter volunteers remains, for the reasons I have mentioned. In the minority of cases that are not clear of offences, the requirement for the individual to submit the check still leaves open the possibility of fraud and abuse by individuals.
Our proposed amendment would simplify the system while still allowing reasonable opportunity for the applicant to appeal any information. Our proposal is almost identical, as I understand it, to the one proposed by the noble Lord, Lord Addington, in that it would provide for a delay between the time that the certificate is sent to the applicant and the time it would be sent to the organisation and the employer. The only difference is that we have proposed a delay of two weeks, whereas the noble Lord, Lord Addington, has proposed a delay of, I think, 10 working days, so we are talking about the same period of time in reality. Our amendment also ensures that, should the applicant lodge an appeal within that period, the CRB would suspend disclosure to the organisation for the duration of that appeal.
The line of argument running through the Government’s changes to existing safeguarding arrangements in this Bill is one of what they describe as proportionality and common sense—or, to use the Minister’s favourite word, balance. However, the Government’s approach to CRB check disclosures is wildly disproportionate. According to the Criminal Records Bureau—and this point has already been made on more than one occasion—just 0.06 per cent of disclosures have inaccuracies in them and some of these are simply a case of a misspelled name rather than a serious matter for appeal. The reality is that the Government are proposing changes that will increase bureaucracy for organisations, deter volunteers and create a potential loophole to be exploited by highly manipulative individuals; all apparently for the sake of 0.06 per cent of CRB checks. Our amendment addresses these issues.
Lord Rosser
I notice that the Minister said that he would continue discussions with his noble friend and sporting organisations. Does that mean that he does not intend to discuss it with ourselves on this side, even though we have tabled a very similar amendment?
Lord Henley
The noble Lord has taken offence because I accidently used the words “noble friends” and did not include the entire House. I said that I would write to everyone—I will certainly include the noble Lord in these discussions if he feels he is being left out. I made the point purely because it was my noble friend who brought the sporting organisations to see me, having made a request. I am not aware that the noble Lord came along with any sporting organisations—or, if he did, I did not notice them. But anyway, I will include him in this offer. I would be more than happy to see him.
Lord Rosser
The Minister knows that I was not there with any sporting organisations, but I have an amendment down, which I take it that the Minister is not terribly enthusiastic about, which is very similar to the one tabled by the noble Lord, Lord Addington. The Minister has made it clear that he is prepared to discuss the amendment with the noble Lord, Lord Addington, so I am not quite sure why he originally intended to exclude ourselves.
Lord Addington
The noble Lord would of course add to any gathering that we had, and I hope that he comes at least as my guest to any meeting.
Prevent Strategy
Lord Rosser Excerpts(12 years, 12 months ago)
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Lord Rosser
My Lords, I add my thanks to my noble friend Lord Noon on securing this debate and for speaking in such a forthright way about his personal experiences and his strong concerns and reservations. Following the bombings in London in July 2005, much work was done on the development of Prevent—work which was largely breaking new ground since it was needed to disrupt the process of radicalisation when there was no previous experience to draw on. The strategy was launched in 2007 and its objective was to seek to stop people becoming terrorists or supporting terrorism both in the UK and overseas. It was the preventative strand of the then Government’s counter-terrorism strategy.
In view of the fact that it was breaking new ground, there was clearly going to be a need to review and update the Prevent strategy in the light of experience, including experience of the different approaches adopted. This Government have undertaken such a review as part of their wider review of counterterrorism. An independent oversight of the Prevent review was provided by the noble Lord, Lord Carlile of Berriew. In his preface to the Government’s Prevent strategy, the noble Lord said, among other things, that generally, Prevent had been productive.
The Government have said that their Prevent strategy will involve work with sectors and institutions where there are perceived to be risks of radicalisation which need to be addressed. On this point, perhaps the Minister could say what has happened since the review was published in June. We know that the Secretary of State has healthcare providers and universities in mind, so what is she expecting the NHS and universities to do that they have not previously been doing? What has been their response, bearing in mind previously expressed views by Universities UK and the BMA on this issue?
Last June, the Secretary of State said that Prevent was about acting on information from the police, security and intelligence agencies, local authorities and community organisations to help those specifically at risk of turning towards terrorism. Since it involves the security and intelligence agencies, can the Minister say whether the Intelligence and Security Committee will be involved in evaluating the effectiveness of the Prevent strategy? Could he also say against what criteria and objectives will the Government assess the effectiveness or otherwise of the Prevent strategy?
The Government have said that Prevent depends on a successful integration strategy, which will be the responsibility of the Department for Communities and Local Government. What kind of financial resources will be available next year and in future years, since there have already been significant cuts from the Prevent funding for local councils this year and there appear to be further cuts to come? Police budgets and numbers are also being cut. What kind of priority have police forces committed themselves to give to the Government’s Prevent strategy, since the Government have said that Prevent is about acting on information from the police?
The Government have also said that public funding for Prevent must be rigorously prioritised and comprehensively audited. What does that statement mean in terms of the amount of funding for Prevent—not least on training and personnel—that will be provided in future from the Home Office and other departments? Will funding be going up or will it go down? What link-up will there be between the Home Office initiatives and the DCLG integration strategy to ensure that they complement each other? In the House of Commons on 7 June, the Home Secretary said that the Government’s Prevent strategy,
“will stop the radicalisation of vulnerable people. Above all, it will tackle the threat from home-grown terrorism”.—[Official Report; Commons, 7/6/11; col. 54.]
Note that the Home Secretary did not say that the strategy was designed to achieve those objectives, or that it would make an important contribution to achieving them. She said it would achieve those objectives. If it remains the Government’s view that their Prevent strategy will single-handedly and without doubt achieve those objectives in full, then I fear that the Government have underestimated the complexity and difficulty of what they are quite rightly seeking to achieve, or that they are as interested in rhetoric as they are in seeking to build on, develop and update in a consensual way the work that has already been done under the Prevent strategy.
Protection of Freedoms Bill
Lord Rosser Excerpts(12 years, 12 months ago)
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Lord Rosser
Lord Rosser
My Lords, this group of amendments would remove, following a government amendment in the other place, the requirement to gain approval from the biometric commissioner to retain DNA and fingerprint profiles for three years for those arrested for, but not charged with, qualifying offences; remove the provision to allow the police to apply for a two-year extension in the case of persons arrested for, or charged with, a qualifying offence; and provide for persons over 18 arrested for or charged with a minor offence to have their DNA and fingerprints stored for six years, replicating the evidence-led provisions of the Crime and Security Act 2010.
On the retention of DNA for qualifying offences—serious offences—research by the Jill Dando Institute of Crime Science, which was assessed in a Home Office report in 2009, showed that the seriousness of the initial offence for which the person was arrested does not necessarily predict the seriousness of subsequent offences with which they may be associated. As a result of the Government’s proposal on qualifying offences—I make no apology for returning to the figure—17,000 people arrested but not charged with rape will be removed from the database. It would be helpful to know the Government’s assessment of the impact of this development. In addition, as my noble friend Lady Royall of Blaisdon said, rape has a low charge rate as well as a low conviction rate. Approximately 70 per cent of individuals arrested for rape are not charged, and we know the reasons why. It is often because of the impact of the trauma suffered by victims and problems over securing conclusive evidence.
As an example of the point that I am making, I repeat that Kensley Larrier was arrested in May 2002 for possession of an offensive weapon, which is not classified as a qualifying offence under this Bill. His DNA was taken at the time and retained, although the case never reached court. In July 2004, a rape was committed in the north of England, and DNA from that investigation was speculatively searched against the National DNA Database and matched against the acquittal sample. Larrier was convicted and jailed for five years and was entered on the sex offenders register for life, and that would not happen under this Bill. I repeat that the evidence from the Jill Dando institute shows that the seriousness of the initial offence for which the person was arrested does not necessarily predict the seriousness of subsequent offences.
The Government’s proposals in this Bill, with its references to qualifying offences, are forcing a false distinction in the risk of further offences on the basis of little or no evidence and are shifting the burden of risk assessment on to the police. The judgment of the balance between risk to the public and the right to privacy is the responsibility of the Government, who should not place added administrative burdens on the police. Since the Government have accepted the argument that in some cases there will be a strong enough risk to public safety to warrant retention beyond three years, the way to go about it is not to create a convoluted and bureaucratic system where the burden lies on the police to make that judgment.
With that in mind, it would be helpful if the Minister could say something about the thinking behind the Commissioner for the Retention and Use of Biometric Material, because it would appear that the commissioner will be able to agree to the retention of DNA only for a person who has been arrested and not charged with a qualifying offence—that is, a serious offence—where the victim is vulnerable or where the person arrested knows the victim. The police will also have to show why they consider that the retention of the material is necessary to assist in the prevention or detection of a crime, which may be more easily said than done. If the person has committed a non-qualifying offence, as in the Kensley Larrier case, to which I referred, no application, as I understand it, can be made to the commissioner.
It is also far from clear that the Government’s intended definition of “vulnerable adult” will even cover many rape victims. In the light of the evidence on rape cases and of the findings of the Jill Dando institute, why are the Government having the additional hurdle of the commissioner at all and certainly with such restrictive powers in relation to the retention of DNA? Will the Minister say whether the powers that the Government intend to give the commissioner mean that we shall have a system similar to that in Scotland, or is the argument still being made that there are significant variations from that system?
In evidence to the Public Bill Committee in the House of Commons earlier this year, the Association of Chief Police Officers said it had been in close contact with colleagues in Scotland on the National DNA Database Strategy Board, and they had indicated that the system proposed by the Government in this Bill had not led to any extensions and was quite complex to operate. Asked why it had not led to any applications for extensions, ACPO said that it thought it was because there were 6 million records on the National DNA Database; it had always argued that it was impossible to create a regime of individual intervention for a database of 6 million and it was necessary to make decisions based on automation, but that in effect the Scottish model had to rely on a judgment being made against an individual profile.
Lord Henley
My Lords, it seems that with this group of amendments the noble Lord first wishes to, in effect, remove the independent biometrics commissioner and then, as we discussed earlier, extend the period of DNA retention automatically to six years for virtually all offences. Amendments 6, 9 and 10 would leave the decision entirely in the hands of the police. Obviously I can see the attraction of effectively automating the process to reduce the administrative burden placed on the police in those cases. However, the Government consider this to be completely outweighed by the additional protection given to the arrested person by the safeguard of the commissioner’s consideration. We considered this issue very carefully in drawing up our proposals.
We accept that it is appropriate in limited circumstances to retain material where a person has been arrested for a qualifying offence but not subsequently charged, and those circumstances are set out in new Section 63G(2) and (3) of the Police and Criminal Evidence Act 1984, which would be inserted by Clause 3 of this Bill. However, given that in such cases the charging standard has not been met, we believe that further safeguards are necessary, and the independent scrutiny of the commissioner provides that safeguard.
In support of his arguments, the noble Lord produced the case of Kensley Larrier, whose DNA, he claimed, was vital in getting him convicted of rape. My advice is that the DNA was not the key to his subsequent conviction for rape and on that occasion it was the complainant who took the police to the block of flats where he lived and described him in such detail that he could easily be identified. No doubt the noble Lord will say that that is just one example and will produce others, but it was not a very good example and it does not particularly support his case. Again, it is a question of finding the right balance.
I also remind your Lordships that the evidential charging standard is that there is a “realistic prospect of conviction”, which is defined in the Code for Crown Prosecutors as,
“an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law”,
that,
“is more likely than not to convict the defendant of the charge alleged”.
Where the charging standard has not been met but the police believe there are valid reasons to retain the material, we believe that the process of applying to the commissioner, which we are determined to make as straightforward, simple and unbureaucratic as possible, provides an important safeguard.
As I have indicated, we believe that the police should be able to retain biometric material in limited circumstances. In this respect, therefore, the Bill goes beyond the Scottish system in allowing for the retention of material from persons who have been arrested but not charged, which is why we believe that there should be the safeguard that we have set out to form the biometric commissioner. As my right honourable friend the Home Secretary said at Second Reading in another place:
“We must protect the most vulnerable in society, so when the victim of the alleged offence is under 18, vulnerable or in a close personal relationship with the arrested person … the police will apply to the commissioner for retention. I believe that these rules give the police the tools they need without putting the DNA of a large number of innocent people on the database”.—[Official Report, Commons, 1/3/11; col. 207.]
For that reason, I cannot offer a crumb of comfort to the noble Lord in his Amendments 6, 9 and 10.
Amendment 13 would provide for a six-year retention period in the case of a person arrested for or charged with, but not convicted of, a minor offence. Clause 4 delivers another of the key protections of the Scottish model. Read with Clause 1 it provides for the destruction of the DNA profiles and fingerprints of anyone who has been arrested for or charged with a recordable offence that is not a qualifying offence but who is not subsequently convicted. The Government’s view is that not retaining that material taken from those arrested for or charged with a minor offence but not subsequently convicted strikes the right balance between public protection and individual freedoms.
The European Court of Human Rights was clear on this point. A key passage of the Marper judgment, the case to which we referred earlier and which this Bill implements, stated that it was struck by the indiscriminate nature of the power of retention then in force, and highlighted the fact that,
“material may be retained irrespective of the gravity of the offence with which the individual was originally suspected”.
Obviously, the noble Lord, Lord Rosser, takes a contrary view. He says that we should retain as much of this DNA material as possible for as long as possible. Some of his noble friends, such as the noble Lords, Lord Campbell-Savours and Lord Soley, want ultimately to have everyone’s DNA on the register. The party opposite says that retaining someone’s DNA profile on a database is not much of an intrusion. It compared it to keeping a photograph and said that it is not much of an intrusion compared with the risk of even one rape or serious assault left unsolved. I do not accept that.
We have argued consistently, both before the election and since, that the previous Government’s models went too far. We think that the Scottish model strikes a far better balance between the competing interests, as the Joint Committee concluded when it examined the previous Government’s proposals. As I made clear in the debate on the earlier amendment, I believe that a great many others support us on this issue.
As for the research conducted by the Jill Dando Institute of Crime Science, the noble Lord should remember that its director later noted that it was incomplete and based on data to which it was not given direct access. In September 2009, Gloria Laycock, director at the institute, said of the research study:
“That was probably a mistake with hindsight. We should have just said ‘you might as well just stick your finger in the air and think of a number’”.
I took that from a briefing provided by Liberty, for which I am most grateful. The noble Lord also might have looked at that and might have found it of some use in his arguments. We are trying to find the right balance and we believe that we have. I hope therefore that the noble Lord will feel able to withdraw his amendment.
Lord Rosser
I thank the Minister for his response. It throws into sharp contrast the fundamental difference of view between this side and the Government over the length of time that DNA samples should be retained, and the types of cases for which they should be retained. I do not think the Minister has sought to argue that retaining them for the longer period of time, which is what we are advocating, would not lead to more people who have committed serious offences being apprehended. He gets around replying to that argument simply by talking of a so-called balance. On this side we have made it clear that we are in favour of a balance that seeks to apprehend those who have committed serious offences and one that reduces the number of people who are likely to be the victims of serious crime.
However, there is obviously a fundamental difference on this view, which was expressed by the Minister during our discussion on the previous amendment. I will withdraw this amendment for the moment, but we will consider whether to bring back a similar amendment on Report.
Terrorism Prevention and Investigation Measures Bill
Lord Rosser Excerpts(13 years ago)
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Lord Faulks
My Lords, I have enormous respect for the noble and learned Lord, Lord Lloyd of Berwick, for his experience and the consistency of his approach to this issue. I also acknowledge how delicate the situation is, how important the liberty of the individual is and that any powers of this nature ought to be hedged by a great many safeguards. However, a decision of this nature is one that falls to the Home Secretary to take. So far, the judges who have these powers have exercised the right to scrutinise thoroughly in a way that we cannot feel is short of what might be desired. I respectfully submit that it is a power that should belong to the Home Secretary, who makes these decisions, no doubt with great anxiety and the consciousness that any decision that she makes will be looked at very carefully.
A judge will have an opportunity to look at a particular case on an ad hoc basis. However, we should not underestimate the strategic role of the Home Secretary to see an act or potential act of terrorism, or a terrorist, in the wider scope. Notwithstanding all the powerful speeches that have been made, I respectfully submit that this is a question that belongs to the Home Secretary and her alone.
Lord Rosser
My Lords, we do not feel moved to change our stance on the procedure that is associated with control orders. Therefore, we have a fundamental difference of view with those who have tabled the amendments that we are discussing and, indeed, with all noble Lords bar one who have so far spoken in this debate. The security of our citizens—protecting them from the risk of terrorism of the exceptional kind that we have seen and been under threat from in recent years—is the responsibility of an elected Government through the Home Secretary. It should be a matter for the Home Secretary, who is accountable to Parliament and the electorate, and not the courts, to make an executive decision on whether a TPIM and its associated conditions are needed if she or he reasonably believes, based on the intelligence available, that an individual is involved in terrorist activity that places the security of our citizens at risk. For that reason, we are not able to support these amendments.
Lord Lloyd of Berwick
My Lords, very briefly, Clause 5 enables the Secretary of State to renew measures for a further year if conditions A, C and D are satisfied. He does not need to be satisfied of condition B, that there has been fresh terrorist activity during the first year. Amendment 39 has two separate purposes. First, it requires the Secretary of State to be satisfied of fresh terrorist activity during the first year before he automatically renews for the second year. Secondly, it places an absolute limit on renewal of two years. It cannot go beyond that.
Curiously enough, this amendment might have received some support from the noble Lord, Lord Carlile of Berriew. If I remember correctly, it was his view that somebody who had been subject to a control order for two years would have little further potential use as a terrorist. He was rather minded to pose—or had some sympathy with posing—a limit of two years on the extent to which these measures can be renewed.
The Minister said at an earlier stage that it is not the Government’s intention to use measures of this kind to warehouse individuals who are suspected of being terrorists. Yet, as we know, they have been warehoused—if that is the right word—for periods of three, four and five years without ever having been charged or tried. That is happening now. The purpose of this amendment is to ensure that that does not happen in future. There should be a final limit of two years. I beg to move.
Lord Rosser
My Lords, very briefly, this amendment seems to provide for a TPIM to remain in force for no more than a year or a lesser period determined by the court. It also provides that the measures may be renewed for a period of no more than one further year if, on application to the court, the court is satisfied on the civil burden of proof that the individual has been involved in terrorist-related activity since the imposition of the original measures. If that is correct, our view is that those considered to be engaged in serious terrorist activity are not often likely to have so changed their intentions within a period of 12 months. For that reason, it would not be appropriate to end the order. The amendment suggests that it would be, unless there was evidence of further terrorist-related activity. If we understand the amendment correctly, our view is that it would detract from the ability to protect the public. We are not inclined to support it.
Baroness Hamwee
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, expressed a certain weariness when he spoke on this issue in Committee. I do not think that he used the words “ritualistic” or “formulaic” but that may have been what he had in mind when he referred to the way some of the control order debates seemed to be going. I share that concern, but it leads me to say that we should make sure that renewal of this provision is not ritualistic or formulaic. We should take care to avoid that. However, it is not an argument for saying that we should not undertake that renewal.
We will, I am sure, be told by the Minister that we can debate the issue at any time that any of us succeeds in putting down a debate, and that the Government could repeal TPIMs at any time. Neither of those claims is an answer to the points that have been made. I urge the Government, if they lose the Division that is about to come, to turn it into a virtue and explain annually why it is that any renewal is required. The term “trust” was used quite a lot at an earlier stage in this Bill. Trust does need to be renewed, as well as everything else, to take both your Lordships’ and the country with them. The Government should regard this as an opportunity, not something that should be pictured in any way as a defeat.
Lord Rosser
My Lords, I will be brief. Our own Joint Committee on Human Rights said that the TPIMs remain,
“an extraordinary departure from ordinary principles of criminal due process”.
It went on to recommend that the Bill should also,
“require annual renewal, and so ensure there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.
Your Lordships’ Constitution Committee, as the noble Lord, Lord Pannick, said, also questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. Whatever one’s views on the need for TPIMs, these are considerable and exceptional measures, and it is surely right and appropriate that Parliament should—as happens currently with control orders—continue to have the opportunity and the duty to decide each year whether the situation remains such that the measures in this Bill and the associated powers should continue in being or instead be allowed to expire.
The fact that debates on the Bill are taking place now does not affect the necessity and appropriateness of proper consideration each year by Parliament of whether the circumstances remain such that these powers, and the way in which they are used and operated, are still needed for a further period of time. It remains to be seen whether the Minister’s position has changed on this issue, but if the noble Lord, Lord Pannick, decides in the light of the Minister’s reply to test the opinion of the House, we should support his amendment.
Lord Henley
My Lords, perhaps I may say how grateful I am to the noble Lord, Lord Pannick, for setting out his amendment and explaining it so carefully. I am also grateful that he set out the arguments I put forward both in Committee and at Second Reading. I will go through them again because I think that the House would like to hear them, and I might be able to persuade noble Lords of the merits of my position. I will not follow the second speaker in the debate, the noble Baroness, Lady Hayman, in her strictures to her own former Front Bench about consistency. I will leave that as an internal family matter that they can sort out among themselves. Consistency is important on some occasions, but that is a matter for the noble Lords, Lord Hunt and Lord Rosser, to consider in due course.
It is important that I set out the Government’s views on why we think it is not necessary to go to an annual review, as opposed to the five-year review that we are proposing. I will set out the argument on three major grounds, more or less as the noble Lord, Lord Pannick did. First—that dread word—we believe that renewal every five years strikes the right balance. It reflects the need to build in effective safeguards to ensure that powers do not remain in force longer than is necessary. It also reflects the competence of Parliament to apply intense scrutiny to legislation—no one can say that this legislation has not had intense scrutiny, and it has not been emergency legislation as on previous occasions—and to arrive at a position that will not need to be reviewed annually. Each new Parliament will have the opportunity to debate this view in the context of the situation at the time and to take its own view. This is in line with the length of Parliaments provided by the Fixed-term Parliaments Act.
Secondly, we believe that annual renewal is unnecessary. The Bill has been subject to full parliamentary scrutiny with the usual timetable allowing for a settled position to be reached. As I stressed earlier, by contrast the control order legislation had to be, necessarily, rushed through with very little opportunity for debate, although there was considerable debate in this House. That made annual renewal an appropriate safeguard for the 2005 Act. Admittedly it was a safeguard that was initially opposed—as the noble Baroness, Lady Hayman, reminded us—by the Government at the time, but it is one that is not necessary in respect of this Bill.
I stress that there are other significant forms of oversight and scrutiny. There will be the annual report by the independent reviewer of terrorism legislation; there will be quarterly reports to Parliament by the Secretary of State—she must report quarterly on the exercise of these powers under the Act—and there will be the usual post-legislative scrutiny which requires a detailed memorandum on the operation of the Act to be submitted to the relevant departmental Select Committee and laid before Parliament. As we discussed when debating many of the earlier amendments and all earlier stages of the Bill, every individual TPIM notice will be carefully scrutinised by the courts.
Thirdly, I stress again—this point was raised by my noble friend Lady Hamwee and others—that there are other means by which the Bill can be amended or repealed. There is an order-making power to repeal the TPIM powers, and if it becomes clear that the powers are no longer needed—we would all welcome that occasion if it should happen—it will be possible at any time during each five-year period for the Home Secretary to repeal the powers by order. If it becomes clear that the powers should be changed, the legislation can be amended by Parliament at any time in the usual way.
We do not, therefore, believe that an annual renewal is necessary. We think a five-year review of these matters strikes the right balance. I appreciate that other noble Lords who have taken part in the debate have strong views on the matter and I understand the concerns of the noble Lord, Lord Pannick. However, I hope—although I doubt very much—that what I have said might persuade him on this occasion to withdraw his amendment.
Statement of Changes in Immigration Rules
Lord Rosser Excerpts(13 years ago)
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Lord Rosser
That the Grand Committee do consider the Statement of Changes in Immigration Rules.
Relevant documents: 40th and 41st Reports from the Merits Committee.
Lord Rosser
First, I apologise for the absence of my noble friend Lord Hunt of Kings Heath. He is involved in the health bill and does not know how long the issue being discussed in the Chamber will last. It may well be brief, in which case he will be required in the Chamber.
The statement of changes to Immigration Rules has been the subject of consideration by the Merits of Statutory Instruments Committee. The Merits Committee, of which I am a former chairman, drew the changes to the special attention of your Lordships’ House on the grounds that they give rise to issues of public policy likely to be of interest to the House. However, in its conclusion, the Committee also stressed the importance of providing appropriate levels of explanation and visibility for Parliament.
The statement of changes makes a number of amendments to the Immigration Rules, but the most significant is a provision that a person subject to immigration control who has failed to pay NHS charges of £1,000 or more in respect of NHS treatment charges should normally be refused permission to enter or remain in this country, or have their leave cancelled.
The Merits Committee states that the consultation on this issue produced important comments from stakeholders. It noted that the document on the United Kingdom Border Agency website, giving the results of the consultation, provided a relatively full and balanced account of the consultation outcome. However, the Committee went on to say that it was regrettable that this was not matched in the Explanatory Memorandum laid before Parliament, and that furthermore, given the importance of some of the issues raised in the consultation, Parliament could reasonably expect the United Kingdom Border Agency to have used the Explanatory Memorandum to provide greater reassurance that the policy will achieve its objectives.
It would be helpful if the Minister could explain why the Explanatory Memorandum did not match up to the level and standard of information on the consultation outcome provided on the website. Or is it his view that this is not the case and that, as far as Home Office Ministers are concerned, the Merits Committee is being unreasonable? That might well be the view of Home Office Ministers, bearing in mind this is by no means the first time that the Merits Committee has been less than impressed with the quality and completeness of information provided to them by the Home Office, and so far there appears to be an inability by Home Office Ministers to rectify the situation.
The Merits Committee was not alone in expressing its concerns on this point. The committee received a letter from the British Medical Association about the change in respect of outstanding NHS charges, which stated that it had submitted a detailed response to the Department of Health consultation and raised some general points by letter to the United Kingdom Border Agency in response to its parallel consultation.
The British Medical Association said that it had concerns with respect to the way comments relating to the proposed legislation had been represented, particularly in the Explanatory Memorandum accompanying the statement, which it did not think had adequately represented the balance of comments it had submitted. The Explanatory Memorandum states that the British Medical Association supported the proposals in principle and that,
“the introduction of changes to the Immigration Rules to promote payment of NHS debt seems reasonable”.
The letter from the BMA went on to say that it had raised significant concerns, in particular over the detrimental impact such changes could have on the engagement of vulnerable groups with health services, which were not reflected in the Explanatory Memorandum. Significantly, the Merits Committee went on to say that it shared the BMA's concerns about the United Kingdom Border Agency's representation of the BMA's position in the Explanatory Memorandum. Is the Minister, too, concerned about the representation of the BMA's position in the memorandum, or will he go on the record as saying that the memorandum adequately represented the balance of comments submitted by the BMA—contrary to the views of both the BMA and the Merits Committee?
The Merits Committee report makes it clear that in order to get a better understanding of how the consultation fed into the policy development process, the committee had to seek further information from UKBA about concerns raised during the consultation, as well as about any risks and remaining dissatisfaction with the proposed changes. That further inquiry elicited information that was not contained in the Explanatory Memorandum: namely, that concerns have been expressed, including by the BMA, that an unintended consequence of the rule change might be that it would act as a deterrent for migrants to seek necessary medical care, and that three organisations had raised issues of confidentiality and/or of data protection. The issue of confidentiality was most actively highlighted by HIV/AIDS representative groups because in their view HIV/AIDS is a stigmatised condition.
The committee also received a submission from the National Aids Trust saying that the new rules would have a serious impact on public health by dissuading migrants with HIV from accessing testing and treatment. The National Aids Trust was also of the view that the rules might lead to unlawful discrimination against disabled migrants and indicated that it may mount a legal challenge on these grounds. Will the Minister say if the Government considered whether the new rules could be regarded as constituting unlawful discrimination in relation to any groups or categories of individuals?
Since UKBA said that the rule change was drafted so that an NHS debt would not result in a mandatory immigration refusal, and that the new rule would be applied on a case-by-case basis, the Merits Committee also wrote to the Minister seeking a full explanation of how the new rule relating to NHS charges of £1,000 or more being applied on a case-by-case basis would operate. The committee has now reported on the reply from the Minister responsible for immigration. In the light of that reply, its latest report states:
“The Committee notes that the guidance for decision makers seems to suggest that these medical cases will result in an immigration refusal in all but rare and extreme circumstances”.
Will the Minister say whether he considers that to be a fair interpretation by the Merits Committee of the response from the Minister for immigration?
The Merits Committee undertakes valuable work on behalf of your Lordships' House, considering instruments and drawing them to the special attention of the House where necessary, in line with its terms of reference. Its report on the statement of changes to Immigration Rules raises serious issues about the Explanatory Memorandum and also makes it clear that the committee had to pursue further issues in writing because the level of explanation was less than it should have been. I hope that the Home Office and Home Office Ministers take seriously the work of the committee. If future reports contain further critical observations about the quality, accuracy and extent of the information provided by the Home Office, no doubt there will be more debates of the kind we are having today. The Minister has not been in his position for long. I hope that he will be determined to address the concerns raised by the Merits Committee in the report that we are considering, as well as the not dissimilar concerns raised in previous reports. I beg to move that the Committee do consider the statement of changes in Immigration Rules.
Lord Avebury
My Lords, before coming to the statement, I will say that as we get material changes to Immigration Rules at such frequent intervals and there is invariably a prayer tabled against each one, they ought to be made subject to the affirmative resolution procedure. I would be grateful if my noble kinsman will let us have his views on that matter.
We are considering this statement against the backdrop of several major crises hitting UKBA at the same time. There is the saga of the passport checks and the suspension of three top officials for the unannounced dropping of our guard against terrorists, money launderers and drug merchants—which now appears to have been the bright idea of the Home Secretary. Then there was the robust criticism by the chief inspector of the management of foreign national prisoners, with 1,600 being detained in January at the end of their sentences for an average length of 190 days, costing the taxpayer as much as if they had stayed in the Savoy hotel. A third of them appealed successfully against their deportation, meaning that if UKBA had made the correct decisions, it would have saved the taxpayer millions of pounds. There was the sudden revelation that the agency had discovered another 124,000 legacy cases to replace the 300,000 cases it was supposed to have dealt with over several years ending in July 2011. It is about time that we had a full-scale debate on all the catastrophes that keep engulfing UKBA, including an examination of whether the agency should be put out of its misery and its functions resumed by the Home Office. At least there would then be no question of where the buck stops.
The next general point I want to make is that this instrument, like others in the past covering changes to the Immigration Rules, is being debated after it has come into effect. Parliament cannot be seen to exercise control over legislation in these circumstances because however valid the criticisms we make, they could be accommodated by the Government only by bringing in a further order, which is unthinkable.
Turning to the statement, as the noble Lord, Lord Rosser, has said, the Merits Committee focuses attention on the proposal to refuse permission to enter or remain in the UK to anyone who has failed to pay NHS charges of £1,000 or more and to cancel any outstanding leave to remain for a patient who has run up that level of indebtedness to the NHS. Although the BMA supported the idea in principle, there are serious concerns over making it mandatory, irrespective of the patient's means or the nature of the illness for which she needed treatment. UKBA told the Merits Committee that it would be applied on a case-by-case basis, as the noble Lord pointed out, but has not yet received an answer to the request that the Minister should provide a full explanation of how discretion is to be exercised. I hope we are going to hear something about that from the Minister this afternoon.
An example that was given in the Merits Committee report, which has already been referred to by the noble Lord, Lord Rosser, is of patients with HIV/AIDS. This was raised by three organisations in the consultation, one of which was the National AIDS Trust, from whom your Lordships have now heard further. It believes that this proposal is immensely discriminatory and will have an immensely harmful impact on public health. It will cost the NHS far more in the long run because HIV-positive migrants will avoid treatment and become ill and HIV will spread within and beyond migrant communities at an estimated lifetime cost of £280,000 for each new patient becoming infected. The National AIDS Trust says the groups most affected will be asylum seekers, visa overstayers and those without papers who have often been living in the UK for years without lawful residence, not visitors who come here with the deliberate intention of getting free medical treatment.
There is nothing in the statement to cover migrants who simply could not afford to pay large medical bills. Let us take as an example a student on an English-language course lasting under six months who is involved in an accident and needs surgery and a week's hospitalisation. She could easily run up a bill of £1,000. Are we saying that her leave to remain should be abruptly terminated and her future career possibly ruined because of this accident?
If the proposal had been confined to certain categories, such as tourist visitors, who should take out medical insurance when they come to the UK, as our tourists do when they go to the US, for example, I could understand it. The impact assessment says that health and other professionals are travelling to the UK specifically to access NHS services and that in many cases they leave without paying. This means that they are identified by the NHS provider as persons who are ineligible for free medical treatment, and they could be asked to pay for it in advance.
There are a lot of other changes, most of which it seems are to correct errors in previous instruments, but some, whether acknowledged or not, are to accommodate judgments of the courts. It has been suggested that the amendments dealing with the evidence that has to be produced by tier 2 migrants and work permit holders was inspired by the case of Pankina. Although that is not stated to be so, perhaps my noble friend will confirm that it is so. There are amendments dealing with spouses and civil partners, among which is one to reinsert a paragraph that was accidentally knocked out in a previous statement that was considered earlier this year. I am sure that that is not the whole story because paragraphs do not get knocked out by accident and it would be useful if my noble friend could probe this further with UKBA to avoid any repetition of that event, at a time when it is so accident- prone.
Lord Rosser
My Lords, I will be brief. I thank the noble Lord, Lord Avebury, for his contribution to the debate and the Minister for his reply, including his statement that regard will be paid to the concerns expressed by the Merits Committee, in particular over the Explanatory Memorandum. That is all I wish to say in response.
Protection of Freedoms Bill
Lord Rosser Excerpts(13 years ago)
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Lord Rosser
My Lords, we have had a lengthy and interesting debate. With a Bill that covers a number of separate issues, it is not surprising that we have heard a number of thoughtful speeches that have concentrated on specific areas addressed in the Bill. These include the impact of Freedom of Information Act changes on universities and their research work, changes to the vetting and barring procedures, and DNA retention. We also heard a glowing testimonial to the last Government from the noble Lord, Lord Selsdon, although I had better add for the noble Lord’s sake that it related only to the specific issue of powers of entry.
This Bill, as my noble friend Lord Kennedy of Southwark said, has a somewhat grandiose title, but as Mr Edward Leigh, the Conservative Member of Parliament for Gainsborough, said in the other place in March this year:
“Compared with the Deputy Prime Minister’s rhetoric last year about bringing in a Bill to ‘protect our hard won liberties’, much of it is a bit tame”.—[Official Report, Commons, 1/3/11; col. 225.]
It is hardly a piece of legislation on a par, for example, with the Human Rights Act 1998, the Freedom of Information Act 2000, the Data Protection Act 1998 or the Race Relations (Amendment) Act 2000, all of which were enacted by the previous Government.
However, the Bill affects important issues and makes proposals involving change in a rather different climate from that which existed when some of the original legislation was passed in this House and the other place. My noble friend Lady Royall of Blaisdon went through the Bill in her speech and set out the parts with which we agree, those with which we disagree and areas where the Bill remains silent but which we think should be addressed. I do not intend to repeat all the points made by my noble friend but will concentrate my comments on particular aspects of the Bill.
The proposals for changes to the vetting and barring regime drawn up following the horrific Soham murders are a cause of concern, not because they make changes but because of the nature of the changes that they make. These were referred to by, among others, my noble friend Lady Dean of Thornton-le-Fylde. Under the Government’s Bill, it will be possible for people to spend time working with and in regular contact with children who will not have been subject to the barring arrangements. Such a situation could arise if the individuals concerned are meant to be being supervised by someone else to a greater or lesser degree. In this situation, it will not be possible to ascertain whether the Independent Safeguarding Authority had ever made a judgment that the individual in question should be barred. Instead, it will be left to the organisation or body concerned to seek any information on the Criminal Records Bureau check and make its own judgment, but it will be unable to find out what conclusions the independent authority may have come to, despite the fact that one would expect it to have some expertise in this area.
The objective should be to ensure that if one organisation or authority is aware that an individual has a record of abuse of others of whatever age, another authority or organisation engaging that person either as an employee or a paid volunteer in work with vulnerable people should not do so in ignorance of that individual’s previous record of abuse, including any assessments that have been made. Serious and potential serious sexual offenders are all too often very determined and very good at covering their tracks and activities. It is all very well wanting to reduce regulation, as clearly the noble Lord, Lord Hodgson of Astley Abbotts, does, but not if it is at the expense of someone else’s safety, particularly a vulnerable person or, in extreme cases, at the expense of their life.
The Government are proposing changes to the retention of DNA samples. In the light of reoffending rates and the benefits of preventing and solving crimes, the previous Government had already legislated for a six-year retention period for those who were not convicted. The then Opposition did not oppose the six-year retention period, no doubt because they accepted that a number of serious offenders, including murderers and rapists, were brought to justice after committing other crimes, because of DNA profiles. Yet this Government now propose to bring the retention period down to three years for an adult who is charged with, but not convicted of, a serious offence. We have not yet heard any convincing evidence that supports such a step, which will make it more difficult for the police to solve and prevent serious crimes.
Certainly the Government’s evidence is not convincing. Their proposal appears to reflect the Scottish model of a three-year limit. That was based on a report by an academic and seemed to be determined by a judgment of the appropriate balance and interpretation of an ECHR decision rather than empirical evidence. The Government have undertaken separate analysis of the Scottish model of DNA retention, and the results suggest that the earliest that offending risk in the charged group falls to the level present in a comparable general population is just over three years after the initial charge. That is based on a comparison of only the lowest-bound hazard curve for the charge group and the risk estimated for all individuals in the general population. It really is a case of being highly selective over the figure picked to try and provide backing for a predetermined point of view.
The six-year retention figure in the Crime and Security Act 2010 was based on extensive Home Office analysis on the length of time for which the offending risk of a group of individuals who might be subject to the retention policy is above the level observed in the general population, known as the hazard rate. The analysis suggested that within four years the hazard rate converges with that for the peak offending age group—males aged 16 to 20. The cohort converges with the general population only after a significantly greater number of years.
In its evidence to the Commons Public Bill Committee in March this year, ACPO stated that,
“we felt that the Crime and Security Act 2010 represented fair balance and was evidence-led, in that there was a body of research around how that measure would play out in protecting the public”.
ACPO went on to say that the Scottish model,
“does not appear to be evidence-led in the way it has been constructed”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 8.]
ACPO estimated that there would be a loss of about 1,000 matches per year under the changes proposed in the Bill. In other words, people currently brought to justice for serious offences because of DNA matches would escape justice and quite probably commit further serious offences. This is not an area where we should be taking chances by making a change based on less than convincing evidence.
In addition, in more than two-thirds of rape cases in which a suspect is arrested, there is no charge. Under this Bill, DNA will be kept where there is no charge in only very specific circumstances, so the DNA will be lost in most of these cases, even though, as the hard evidence shows, it can lead to a repeat offender being caught for this particularly unpleasant and violent sexual offence. Associated with this issue we also consider, as my noble friend Lady Royall of Blaisdon said, that a new clause should be added to the Bill to make a specific new offence of stalking. We shall be tabling an appropriate amendment in Committee to this effect. Stalking is currently covered by the offence of harassment, but the two are not the same and, to prove stalking, harassment also has to be established. There has been a change in Scotland where there is now a separate offence of stalking. The number of prosecutions for stalking is already this year some 10 times higher than the number of prosecutions when harassment was the offence that had to be proved.
The Bill addresses the issue of wheel-clamping and in particular the need to take action against rogue car clampers, with which we agree. We need to be sure, though, that the provisions of this Bill will not hamper action against the rogue parker: the kind of individual who leaves their car in your drive because your home is near a station or a football ground, or the kind of individual who leaves their car in parking bays reserved for disabled drivers at supermarkets and in car parks at leisure activity locations. These questions will need to be pursued during the later stages of this Bill.
The Bill proposes changes to the use of CCTV. Many people regard CCTV as a tool for preventing and fighting crime, and we believe that a full report is needed from the police on its effectiveness before we go down the road set out in this Bill. There may well be a case for some regulation on the use of CCTV, but this Bill provides for a new code of practice that appears to contain so much bureaucracy—with more checks and balances on a single camera than the Government are introducing over police and crime commissioners—that it is likely to deter or prevent the use of CCTV in instances where it would increase safety and security.
Local authorities and police forces will have a statutory duty to have regard to the code in their use of surveillance camera systems. Yet most cameras are used within the private sector. If the Government consider there to be a protection of freedom issue at stake, can the Minister say why no code of practice is to be applied beyond local authorities and police forces? Crimes, and particularly serious crimes, affect our security, and our freedom is in jeopardy if a Government do not regard the right to security as of paramount importance. The previous Government had to address unprecedented peacetime attacks, and the continuing threat of such attacks, on this country. We have heard a great deal in this debate about the rights of the individual, but we have to be careful in protecting those rights not to compromise the security and safety of our communities and our nation.
The previous Government presided over a year-by-year reduction in crimes of all kinds and a 43 per cent reduction in crime overall, according to the British Crime Survey. They left this country a safer place in which to live, work and play than when they came to office, and that is an enhancement in freedom that should not be casually dismissed.
This Bill will be the subject of detailed debate and consideration during its remaining stages, as it should be. While there are changes in this Bill with which we do not disagree—indeed, we agree—there are, as my noble friend Lord Harris of Haringey highlighted, other changes that, despite some of the rhetoric from the Government side, weaken not strengthen an all- important freedom: the right to safety and security for the people of this country.