Cyclists: Road Traffic Laws

Lord Scott of Foscote Excerpts

Monday 18th April 2016 Lords Chamber

[Lord Berkeley]

My Lords, could the Minister confirm that in one sense cyclists are treated unfairly?

[Lord Scott of Foscote (CB)]

My Lords—

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, I am sorry to interrupt, but I want to make the point that it is the turn of the noble Lord, Lord Berkeley. It was actually the turn of the Labour Benches before but I thought it was right that we kept going in order to save time. Let us go to the Labour Benches now, and if we have time we will go to the Cross Benches.

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[Lord Scott of Foscote]

My Lords, I must declare an interest because I cycle regularly in London. The overriding obligation of cyclists in London is to try to ride their bicycle so as to keep it from contact with other vehicles and particularly from contact with pedestrians. If a cyclist does that, the proposition that he should be prosecuted for some breach of one of the many rules of the road seems to be a little overstretched. Still, if that overriding duty is observed, there should not be any problems with cyclists, and the need to prosecute them for minor infringements is clearly not present.

[Lord Keen of Elie]

With regard to the question that has just been posed to the House, I observe that prosecutions in respect of cycling offences are limited to about 1,000 a year at present.

Cycling

Lord Scott of Foscote Excerpts

Wednesday 10th February 2016 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, I, too, add my gratitude to the noble Lord, Lord Young of Cookham, for promoting this debate. I agree with everything that has been said but I must declare my own interest in cycling. I have used a bicycle in London for many years, mainly to get from my flat in Camden to my place of work. Originally it was Lincoln’s Inn, then the Royal Courts of Justice, and for the last few years it has been the Palace of Westminster. So I come and go on my bicycle, and every now and again, something happens and I fall off. It is always a lesson, because it is nearly always my fault—I have not seen a hole in the road, or something of that sort.

The question is on what action the Government should take to promote cycling as a safe means of transport. I do not think that this is a matter for the Government. Cycling will never be absolutely safe; not many things in life are. The rider can take many more steps than the Government can to ensure his or her safety. He can, as has been said, make sure that his bicycle is in good condition and that if it is dark he has functioning front and rear lights. When I bicycle in London I always wear a highly-coloured fluorescent overshirt thing—I do not know what the right name for it is. It is an appalling-looking garment but at least it makes me visible.

Two other things that strike me as important are that the cyclist should have good eyesight and good hearing. Your eyes protect you against dangers in front of you and your ears protect you, to a large extent, against dangers coming up behind you that you can hear. Many cyclists in London, particularly the young, wear earphones so that they can listen to music while they cycle. I am sure that that is fun for them and makes their journey more enjoyable, but it is highly dangerous. If you cannot hear what is coming up behind you, you are not making use of one of your important senses. But there it is; I suspect that they know this. One can always see what is coming towards one and can take appropriate steps and ought to be able to hear what is coming up behind—motorbikes in particular make a huge noise and often come very close.

This debate asks the Government to take action to promote safe cycling. I do not know that it is their job. I think that it is the job of cyclists to look after their own safety and to take the steps that are necessary for that purpose. They should ensure, as has already been said, that their bicycle is in good condition. They would be well advised to wear clothes that cover their arms and legs with material that will protect them against grazing when, as may always happen, they fall on to the tarmacadam. If these precautions are taken, the risk from riding a bicycle in London will reduce to an acceptable point.

There will always be some risk: there is some risk in practically anything that one does that is fun. But I have found bicycling in London, from Camden to the Inns of Court, the Royal Courts of Justice and the Palace of Westminster, highly enjoyable and a very convenient method of travel. There is some risk, and there always will be—but it has to be measured and for my part, I enjoy the experience and I would not want to stop it.

Counter-Terrorism and Security Bill

Lord Scott of Foscote Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Armstrong of Ilminster (CB)]

My Lords, I declare an interest as a former Permanent Under-Secretary of State at the Home Office and as a former chancellor of the University of Hull. I have therefore listened to this debate with great interest and concern. I find myself in a situation that was described in Committee by the noble Lord, Lord Pannick. I agreed with everything he said then, although I shall not repeat it.

The debate has swayed around the issue, and it seems very difficult for us to try to assign primacy between the duties under the Bill and the duties towards freedom of speech. The duty of preserving freedom of speech is, as so many speakers have said, of fundamental importance. However, we have seen that it is possible for people who wish to do so to be rather successful in radicalisation within the restrictions on freedom of speech within the law, so I have sympathy with what the Government are trying to achieve.

The merit of Amendment 14A proposed by the noble Lords, Lord Macdonald and Lord Pannick, and Amendment 15D proposed by the Government is that while the duties obviously conflict, the ultimate choice of what to do is left to the universities. No primacy on one or the other duty is expressed. The decision is left, presumably case by case, to the universities. That seems to be almost the only position possible if we are to retain some kind of inhibition on radicalisation in places of higher education.

[Lord Scott of Foscote (CB)]

My Lords, there have been some memorable speeches this evening. I want to add just a word or two. I have an interest: I have four children, two of whom are Muslims, and 12 grandchildren, seven of whom are Muslims. They are as indignant as anybody else about the outrages that are committed from time to time by members of their religion. They would be wholly supportive of everything that has been said in this debate.

Amendment 15D, as proposed by the Minister, seems to deal satisfactorily—with some exceptions which I propose to mention—with the main issue in this debate; that is, to reconcile the conflict between, on the one hand, the duty on universities to encourage and allow freedom of expression, and, on the other, the Clause 25(1) duty to protect people from being influenced into terrorism. Amendment 15D seems to deal with that, subject to some grammatical points on its second subsection where it refers to the two relevant duties.

One of the duties, imposed by Clause 25(1), is to protect people against terrorism; the other, under the Education Act (No. 2) 1986, is to allow and encourage freedom of speech. Those two duties are often in conflict, and the reconciliation between them is sought to be done with subsection (2) of the proposed new clause in Amendment 15D. It says:

“When carrying out the duty imposed by section 25(1)”—

which is the protection against terrorism, “a specified authority”, such as a university,

“to which this section applies must, if subject to the duty imposed by section 43(1) of”,

the Education Act,

“have particular regard to it”.

I read that several times as I was quite uncertain which of the two duties the “it” referred to. I hope it was referring to the freedom of speech duty but, as a reading of the subsection shows, it is grammatically perfectly capable of referring to the Clause 25(1) duty. That really ought to be sorted out before this amendment becomes final. It could be dealt with perfectly easily by ending subsection (2) with the words: “having particular regard to the freedom of speech duty”.

In subsection (3) of the proposed new clause, there is again this ambiguity as to what “that duty” refers to. There are two duties and it might be referring to either. I think that the duty being referred to in subsection (3) is probably the Clause 25(1) duty. These might be described as pedantic points, but they are the sorts of points that a chancery barrister, as I was when I began my legal career, would love to make in taking up the time of a judge in court. Goodness knows what answer the judge would give: different judges might give different answers, and that would mean that the legislation had a flaw in it. It is an ambiguity that needs to be corrected.

[Lord Wilson of Dinton (CB)]

My Lords, I apologise that I have not intervened before on any stages of the Bill. I come from Cambridge, where the Government have succeeded in something that, in my experience, has never happened before in my 12 years there: they have united the Cambridge colleges, in deep concern about the impact of this provision on the universities. I declare an interest in that I am a fellow of Emmanuel College. I was a master for 10 years and still deliver a couple of lectures for the university and interview for admission.

I was also, for a period, Permanent Secretary at the Home Office. As such, I cannot speak to the Minister in private, so I will have to do it in public. I have a real concern. I understand absolutely the awful nature of the problem that he has. I have some experience of terrorism; I know what it is like from the inside. I know how—if it is not too bad a word—frightening it can be when you have a problem like this. However, if I were speaking truth unto power, I would say that I do not think that this is going to work. That is my real worry, Minister.

There are a number of reasons why it will not work. One of them is that the Government need the universities and their challenge, analysis and intellect—the Minister has heard that said eloquently around the Chamber. But the Government are setting themselves up against that. In fact, in a parody, they are almost protecting radicalism from challenge. This needs the fresh air of challenge. Perversely, the Minister is protecting terrorism and radicalism by protecting them from debate and from challenge. Young people—students—are most open to debate and to understanding new ideas when they are young adults of 18, 19 and 20. It is extraordinary, but I am the third Member who was at the Oswald Mosley debate. This is becoming a declaration made round the Chamber. As a good civil servant, however, I was observing my future masters—and I was not heckling.

It is absolutely fundamental to the success of the Government’s policies that they have the universities on side. They should be working with them rather than doing what this legislation will do, which is to generate huge amounts of paper—just like the FCA and the FSA—and laboured analysis to no good purpose. It will generate heat. It may generate conscientious objection. It will lose the universities. The Minister should read the protest that Cambridge colleges have sent him. He needs them on side and working for him—preventing. He is discouraging them from preventing. He is moving the focus from his task to the Government and their obstruction of academic freedom and freedom of speech. That is not the way to have a successful policy. So what I would say to you as a Minister is, “Minister, think again”.

The Minister has got so far with the Bill that Amendment 15D might be the best he can do. But when it comes to the guidance and the guidelines, please think again. Unless the Minister gets that right and works with the universities, he will have a failed policy that will not look after the national interest. It will protect radicalism and non-violent extremism. That is not what this House or the nation wants.

Modern Slavery Bill

Lord Scott of Foscote Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Lord Bates]

My Lords, I could not have put it better myself.

[Lord Scott of Foscote (CB)]

Having regard to the nature of the statutory torts or the ordinary common-law torts that might be established as a basis for a civil action for damages, it might be desirable to provide in the Act that exemplary damages can be awarded. Otherwise, it might be simply compensatory. This seems an ideal case for the award of exemplary damages if the ingredients of the civil action are established.

[Lord Bates]

If I may, I will come back to the noble and learned Lord’s point and perhaps write to him in clarification, but the compensation orders and the reparation orders relate to criminal convictions. The position would be that they are separate and adequate civil remedies. I realise that does not answer the particular point the noble and learned Lord raised, but I will respond to that during the course of the afternoon.

Queen’s Speech

Lord Scott of Foscote Excerpts

Monday 9th June 2014 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, like the noble Lord, Lord Bach, I want to say a word or two about the civil justice system in this country and the importance that individuals should not only have but be able to exercise their rights of access to the courts, either to prosecute civil claims of their own or to defend themselves against civil claims made against them by others. The ability to have access to the civil courts, whether as claimant or defendant, has a vital part to play in establishing a healthy relationship between individuals and the law and in creating a climate of respect for the rule of law. If any individual is unable to enforce his or her rights in the civil courts, or equally important to defend himself or herself in the civil courts against claims by others, there is a real danger of a diminution in the individual’s self-esteem and a diminution in the individual’s respect for the law itself.

There is no doubt that civil litigation is expensive and that the cost of litigation is capable of constituting a serious impediment to a realisable access to the courts by many, perhaps most, citizens of this country. Of course, legal aid, traditionally, and for many years in my experience, has come to their aid in that regard. Your Lordships may recall that in 1988 and 1989 the then Government adopted a policy that the civil justice system should be made self-financing—the costs to be met by fees charged to litigants. At first, the fees to be so financed excluded judicial salaries, but in 1991 the Government decided that judicial salaries, too, should be included and that all the costs of the civil justice system, save only the costs of the legal aid scheme, were to be met by fees charged to litigants. This was, of course, an impediment to access to justice for all those unable to avail themselves of legal aid.

Since that time, the legal aid scheme itself has been under attack by Governments unwilling to stand the size of the legal aid debts as a burden on the Exchequer year after year. Of course, the consequence of this is that litigants in person will increase in number. The time taken by litigation when the judge does not have the assistance of counsel to represent one or other of the parties will be longer and the whole style of the litigation will change. A judge with a litigant in person before the court cannot afford to have the normal adversarial approach to litigation, with one side against the other and the judge then deciding which of the two is to be preferred in the result. The judge will have to enter the arena and himself or herself investigate the matter, try to discover the real cause of the dispute and the best line of law that should be applied to resolve the dispute. The length of the litigation, as I have said, will increase and at the end of the day I wonder how much in costs will be saved by withholding legal aid from one or both of the disputants.

I ask the Government to make clear their current intentions with regard to legal aid in civil cases. Whatever they are, the Government will, I hope, bear in mind the importance of the respect for the rule of law engendered by a proper ability to appear before the civil courts with legal assistance so as to present the case to the judge and for the acceptance by the general public of the importance of respect for the law. If further inroads are made into the ability to have free access to the courts for want of funds in a way that prevents a proper hearing, that may damage respect for the rule of law, which, in my opinion and the opinion of many, is important for the health of this country’s community.

I therefore ask the Government to make clear their intentions in regard to legal aid, which has been cut down drastically over the past few years and, more recently, in the regulations which came into effect in April this year, which impede the granting of legal aid on applications for permission to bring a judicial review. I need not emphasise how important judicial review is as a form of civil litigation in this country and an individual without legal aid having to make an application for permission is difficult to accept. I therefore ask the Government to think carefully about any further impediment to justice in that and other fields.

Anti-social Behaviour, Crime and Policing Bill

Lord Scott of Foscote Excerpts

Wednesday 8th January 2014 Lords Chamber

[Baroness Howells of St Davids]

My Lords, it is my right to speak. People have mentioned cats and dogs; nobody has mentioned race. If this is the wish of the House, I will not.

I rise to support the amendment in the name of the noble Lord, Lord Dear. I believe that the Bill will allow the law enforcers to use subjective prejudices to harass and even charge persons as young as 10. This law does not take on board the fact that this nation is now multicultural but still has not unlearnt its racial prejudices. The clause could have as damaging an effect as the sus laws which black people have fought and struggled to have repealed. We are not unaware that the sus laws are still enforced by a change of language, as was done at the Notting Hill Carnival in 2013.

Britain is now a land of many cultures, and what one culture will subscribe to is not always acceptable to others and may easily be interpreted as annoyance and nuisance. Anyone with a racial bias could misinterpret the actions of anyone, especially someone of colour, as being offensive and feel it within their right to accuse them of breaking the law. Such actions as the Bill proposes could criminalise many innocent persons and further damage the fragile gains that we have made in this country.

A child as young as 10 may not even know that he or she is breaking a rule. This happened under sus many times—because I have worked in the community, I speak from within. This is what happens when people are given the wrong law. A group of young people speaking loudly or displaying high spirits of any kind could be accused of causing a nuisance or annoyance to others who are not aware of the culture. They could be young people gathering together to chat, especially on housing estates where there is not an awful lot of room. Young people are more prone to be victims of this law because they feel deeply and express it. Others in society, I agree, also feel deeply, but they have the means of concealing their real feelings.

I should like to quote Assistant Chief Constable Richard Bennett of Thames Valley Police, who said he would not expose anyone to the obscenities he had hurled at him at times when he was delivering the law. I worked in the community as a human being. I am not representing the black community. I know what I had hurled at me and the discomfort it caused people that I was engaged in trying to help right the wrongs that were going on.

My motive for speaking here so openly and frankly has been curtailed, and I will not delay your Lordships longer. This clause, if unchanged, will have serious effects on the black community and divisions will be even further stretched, as under the sus law.

[Lord Scott of Foscote (CB)]

My Lords, I wish to take very little time to make a point which is worth making and has not yet been made. I express my complete support for the main thrust of paragraph (a) of the amendment of the noble Lord, Lord Dear, but I wish to express my reservations about paragraph (b) of that formulation. Paragraph (b) refers to anti-social behaviour being,

“in the case of an application for an injunction under this section by a housing provider”—

“housing provider” is defined in Clause 19 of the Bill—

“conduct capable of causing nuisance or annoyance to any person”.

I think that paragraph (b) is ill advised and would be better left out.

The Housing Act 1996, amended by the Anti-social Behaviour Act 2003, provided for “relevant landlords”. That expression is much the same as, but not identical to, the definition of “housing provider” in the Bill. It provided that the courts, on the application of a “relevant landlord”, could grant an anti-social behaviour injunction if the person in question, the respondent, had engaged, or threatened to engage, in housing-related conduct capable of causing a nuisance or annoyance. There we have the expression “nuisance or annoyance” in the amended 1996 Act. Housing-related conduct is defined as meaning conduct directly or indirectly relating to or affecting the housing management functions of the relevant landlord.

There is no repeal provision in the Bill, so these provisions relating to the actions that relevant landlords, as defined, can bring will remain as part of our law, notwithstanding the Bill becoming an Act. Moreover, it is common in tenancy agreements for there to be a covenant by the tenant not to engage in any conduct that might constitute nuisance or annoyance to the surrounding dwellers in flats or houses. That too will remain. There is no repeal provision so far as that is concerned either. The new right being given by this Bill to persons who suffer from the behaviour, whether it is nuisance or annoyance or, as the amendment of the noble Lord, Lord Dear, would have it,

“conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”,

is new. For my part, I do not see why the actions in that regard should not apply as much to housing providers as to anybody else. If housing providers are relevant landlords they can bring the actions referred to in the 1996 Act as amended. If they are not, why should they not be in the same position as anybody else? That is the point I make. This amendment would be improved and would be more consistent with the current law if paragraph (b) was removed.

Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012

Lord Scott of Foscote Excerpts

Wednesday 5th December 2012 Lords Chamber

Moved By

[Lord Scott of Foscote]

That this House regrets that the Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012 (SI 2012/2505) fails to comply with the judgment given on 4 December 2008 in S and Marper v United Kingdom and further regrets that the failure of the Secretary of State to exercise the power under Section 120(1) of the Protection of Freedoms Act 2012 to bring into force Chapter 1 of Part 1 of that Act perpetuates the likelihood of breaches of human rights under Article 8 of the European Convention on Human Rights.

[Lord Scott of Foscote]

My Lords, the Motion of Regret that stands against my name on the Order Paper is prompted by the hope that it will induce the Government to bring into effect Sections 1 to 25—that is, Chapter 1 of Part 1—of the Protection of Freedoms Act 2012. That Act received Royal Assent in May this year but there is no indication of a firm date for bringing Sections 1 to 25—the relevant sections—into effect.

The background to the importance of those sections is that they correct the present statutory powers of the police to retain on their database, potentially indefinitely, fingerprints and DNA material taken from individuals suspected of a relatively serious crime, notwithstanding that those individuals may never have been convicted, may have been acquitted, may not have been prosecuted or tried, for whatever reason, or in some cases may not even have been charged. However, if they were suspected of a crime, the police had the power to take this highly personal material from them—fingerprints and DNA samples, leading to a DNA profile—and to retain it on the database that they maintain to assist them in prosecuting and investigating crime.

Nobody doubts the huge value to the police of an extensive database of the sort that I have mentioned being compiled and kept. Yet the individuals who have never been convicted, and can therefore hold themselves out as being innocent of the crimes of which they were at one time suspected, naturally object to the retention of their details on the police file. The right of the police to do this is at the moment to be found in Section 64(1A) of the Police and Criminal Evidence Act 1984, which says in terms that the police may take and retain the fingerprints and DNA material of persons suspected of relatively serious offences. Individuals have objected to that and two cases have gone to the highest courts in the land.

The first of these two cases, S and Marper, went to the Appellate Committee of the House of Lords, as it then was. I do not have to declare an interest because I was not a member of the Appellate Committee that sat on that case. The Law Lords who did decided unanimously that the retention of the material of the two individuals, one of whom had been acquitted and the other never prosecuted at trial, was justified by the 1984 Act, as amended, because they had been suspected. The individuals took their complaint about this retention of those highly personal data about themselves to Strasbourg, saying that it was a breach of their right to respect for their private lives under Article 8 of the convention. The Strasbourg court agreed with them, disagreeing with the Law Lords.

The Strasbourg court held that the retention of this material, in circumstances where the individuals had never been convicted, was an interference with their right to respect for their private lives, and that something should be done about it. The court did not give them any remedy other than to find in their favour on that issue, and to indicate that within a reasonable time the United Kingdom should amend its law so as to avoid the possible repetition of similar breaches. That Strasbourg judgment was given in December 2008, which was of course in the time when the Labour Party formed the Government of the country. The Labour Party set about formulating revised guidelines for the exercise of the discretion in the 1984 Act’s provision. Those formulated guidelines were embodied in the Crime and Security Act 2010. However, the relevant provisions in that Act were never brought into effect because they were overtaken by the general election and the emergence of the coalition Government.

In the Queen’s Speech of 2010—I think it was in May—the coalition Government announced that they would look again at the guidelines in question and would formulate their own revised guidelines, which would be incorporated into their proposed Protection of Freedoms Bill. That was done and the guidelines, which are in Sections 1 to 25 of what became the Protection of Freedoms Act, were subject to being brought into effect by a statutory instrument to be made by the Secretary of State. Notwithstanding that Sections 1 to 25 contained elaborate and complex details governing the permitted use of material relating to people who had never been convicted, the guidelines were not brought into effect and no firm date for the making of the statutory instrument has, until very recently, been announced.

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[Lord Taylor of Holbeach]

I thank the noble Lord.

Perhaps I may begin by saying that the Government are deeply committed to protecting the privacy and human rights of its citizens. At the same time, they are committed to maintaining an effective and powerful database that protects the public and reduces crime. To this end, as noble Lords have pointed out, they introduced the Protection of Freedoms Act to ensure that innocent people’s DNA and fingerprints are no longer held on databases.

As my noble friend Lord Palmer of Childs Hill pointed out, this is a complex matter, and so to get it right involves quite a lot of technical application and detail. I have been much engaged, in my short time in the Home Office, in trying to make sure that this is all in place. I am pleased to be able to say that the preparatory work required before implementing the Act is substantially complete. I have now received advice on the timelines of the implementation of the Act, and will announce the full details of this to the House within the next few days by way of a Written Ministerial Statement. However, it may help the House if I give some indication of the detail involved.

We anticipate that the elimination of the estimated 6 million DNA samples covered by the provisions of the Protection of Freedoms Act will begin this month, and will be completed by the end of May 2013. All other material covered by these provisions will be destroyed by the end of September 2013. As I say, I will be able to give fuller details of schedules to noble Lords in a Written Ministerial Statement which I expect will be made in the next few days.

There has been some confusion because this interim statutory instrument, laid by my noble friend and tabled through the Ministry of Defence, appears to contradict the thrust of government policy by extending the period of DNA retention. However, this is an interim measure, and I hope to be able to reassure my noble friend Lord Goodlad, whose work in scrutinising this legislation has perhaps prompted the noble and learned Lord, Lord Scott, to bring this Motion to the House. I hope to be able to assure him that a further statutory instrument in consequence of the commencement of these provisions will be tabled by the Ministry of Defence to bring its police powers in line with civil police powers.

I hope that noble Lords can see that this particular debate occurs at a critical point in the process. Over the next few months we will see the Government’s commitment translated into action by the destruction of this material, which is held on innocent people and should not be in the hands of government. With that, I hope that the noble and learned Lord will be able to withdraw his Motion.

[Lord Scott of Foscote]

My Lords, I am grateful to the Minister, to the noble Lord, Lord Rosser, and to noble Lords who have spoken on this Motion.

One matter that I should have mentioned, and forgot to mention when I addressed the House a few moments ago, was that following the decision of the Strasbourg court in 2008, the then Labour Administration reacted, as a preliminary, by ordering the destruction of all data held relating to children under 10. That reaction was immediate, and the White Paper was produced shortly after that, indicating the reformulation of the guidelines to the use of the power contained in the 1984 Act, as amended.

In view of the statement made by the Minister, the purpose of my Motion has—as far as I am concerned—been achieved, and so I ask the leave of the House to withdraw it.

Motion withdrawn.

Protection of Freedoms Bill

Lord Scott of Foscote Excerpts

Tuesday 24th April 2012 Lords Chamber

Finally, I will say that I was always perfectly ready to collaborate with the Government on any necessary drafting changes. Sadly, the message that I received was that the Home Office had no wish to negotiate, with the implication that its legislation is for it to draft and is none of my business. On that I will let your Lordships decide. However, I do not believe that leaving the review to the Whitehall machine, with the Home Office in the lead, would produce acceptable results in an acceptable timescale. I beg to move.

[Lord Scott of Foscote]

My Lords, I rise to support the proposed amendment. It relates to the circumstances in which a statutory instrument or legislation can give authority to regulators—not the police as their powers are enshrined in statute and are not in question—to enter private property without the consent of the owner or occupier of the property or the authority of a warrant granted by a judge.

This goes to the view that one takes of the importance of the rule of law in considering what powers the Executive ought to have to interfere with rights of private property. Clause 40 provides that the Government may place fetters on rights to enter private property. That is a discretionary power that the Government may or may not exercise, and in relation to a number of statutory instruments that I have seen, some quite recently, the safeguard provided by Clause 40 has not been adopted. The obligation on government to obtain the consent of the owner or occupier or to obtain a warrant ought, in my opinion, to be the rule.

Of course, there may be exceptions. The noble Lord’s amendment provides for them. I suggest that they are ample and adequate, but the rule ought to be that the consent of the occupier or a warrant is obtained and that the case has to fall within one of the recognised exceptions. At the moment, the legislation is the other way round so that the rule makes the addition of safeguards to protect the rights of property dependent on the discretion of the Government. That is not acceptable as a basis on which rights of property can be interfered with.

I do not wish to take up your Lordships’ time by repeating what I said during previous debates on this topic and, moreover, today is my wife’s birthday and I have agreed to take her out to dinner at 6 pm. I hope, therefore, that the Minister will forgive me if I do not stay to hear his reply to this amendment.

[Lord Butler of Brockwell]

My Lords, I, too, rise to support the amendment. I do it on the basis of practical experience. I do the Government the credit of saying that their heart is in the right place on this. Indeed, on all sides of the House, it would be agreed that powers of entry without permission or warrant should be kept to a minimum. However, as the noble Lord, Lord Marlesford, said, the crux is where the initiative for reviewing these regulations should lie.

Here, I speak on the basis of long experience in the Cabinet Office and successive initiatives to reduce regulation in government. Those who have been Ministers will be familiar with this. In this matter, the Cabinet Office was on the side of the angels. It wanted to see —indeed, it was a duty imposed on it by Governments—that regulations were reduced. There were successive deregulation bodies. The Minister in another place, Mr Francis Maude, led one of them. The experience of asking departments to make the case for the existence of regulations showed that doing it that way round was not successful because they could always make a case that the regulation might at some time be necessary or useful. For that reason, I was always in favour of having a sunset clause on regulations, a provision that from time to time a department that wanted to maintain regulations should have to make the case for them again. That is what, in effect, the amendment proposed by the noble Lord does. If the Government want to make progress in this, the onus should be on departments to make the case for the power to be renewed. Otherwise, the power should lapse. I am quite sure that if the onus is left as it is and the regulations are reviewed by the departments, very little progress will be made.

I support the noble Lord’s amendment particularly because, as he has said previously, this is a historic opportunity for the Government to set a sunset clause on these powers and oblige departments to make the case anew. I am not sure whether the noble Lord’s amendment is technically correct, but it would be wise for the Government, whose heart, I believe, is in the right place, to think about this again. I hope that they will do so. I am afraid that if they do not, the objectives that they seek to achieve will not be effectively achieved.

Protection of Freedoms Bill

Lord Scott of Foscote Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Borrie]

One has to examine the word need. Trading standards officers are given powers by various statutes for the public benefit—usually consumer protection—and the benefit of other legitimate traders who are not engaging in what appears to be illegal conduct. The trading standards officer wants to examine that. He needs to do it to fulfil his duty.

The noble and learned Lord, Lord Scott of Foscote, has suggested that because magistrates are available literally night and day in order to get warrants when needed, there is no problem. However, the trading standards officer still has to prove something. No magistrate worth his salt is going to accept what a public official says without question in all circumstances. Therefore the amendment that the noble Lord, Lord Marlesford, seeks to introduce is good for trading standards. It might also be good for other equally legitimate work done by other public officials.

[Lord Scott of Foscote]

My Lords, this is an important series of amendments. In particular, the first proposed amendment seems essential to a country that believes itself to be governed by the rule of law. Your Lordships have heard 1,200 mentioned as the figure of the separate powers of entry on to private property granted by primary or secondary legislation. That figure is confirmed by the Explanatory Memorandum produced to accompany the Bill. Therefore, it is not a figure which is contentious or simply argumentative.

The 1,200 separate powers of entry were conferred by 580-odd pieces of primary or secondary legislation. The powers of entry are not simply powers of entry. They almost invariably include powers of search so those who enter can rummage through the premises in question. The powers apply not only to business premises where they may very well be needed, but also to homes—to domestic premises. The law of this country has developed so that it is well recognised that the police may sometimes need, without notice to the owner of the premises, to enter private premises to enforce the law and for the purposes of search and removal of material from the premises in question.

However, the powers of entry in the Bill are not the powers of the police; they are powers of officials and regulators in numerous areas of public life, conferred by various instruments of public law. The notion that officials can be given power to enter the premises of private people, search those premises and remove what they believe to be relevant to their regulatory function without any authority from a judicial body seems quite contrary to how the rule of law ought to operate. For that reason, I particularly welcome the first amendment proposed by the noble Lord, Lord Marlesford.

I believe that the public will understand the need of the police to exercise powers of entry without warrant. Less well understood and certainly less acceptable to the public at large is the need for general regulatory officials to have those powers. My noble and learned friend Lord Browne-Wilkinson said judicially in a case that was heard in 1991:

“Search and seizure under statutory powers constitute fundamental infringements of the individual’s immunity from interference by the state with his property and privacy”.

In my respectful opinion, those are incontestable statements of opinion. It follows that proper safeguards to be associated with the exercise of these powers of entry, search and seizure are essential if the rule of law is to be available to retain the respect that a healthy society requires.

Protection of Freedoms Bill

Lord Scott of Foscote Excerpts

Thursday 12th January 2012 Grand Committee

[Baroness Warwick of Undercliffe]

My Lords, I added my name to this amendment because, as noble Lords will know, I have a long-standing interest in promoting the interests of our universities. Like others, I feel that when the Freedom of Information Act was passed, this House did not foresee how its provisions would relate to the university context. The Act’s intention—to increase public access to information held by public authorities—is right.

In relation to university research, like others, I strongly support access to research data and the transparency of the research process. That is a culture that the Government should encourage, not least because it will increase public confidence in science and research and will also help the research community to make the most of the products of its collective work. However, access to research information must be balanced with the need to support the research process itself. It is not in the national interest to provide access to information in a way that inhibits research in contentious areas, discourages people taking part in research projects or drives commercial research funders away from the university research base. Nor is it in our national interest to put a brake on the competitive position of our universities internationally.

There are already exemptions that can be used by university research staff to refuse to disclose information requested under FOI. The ICO has done much to explain, in sector-specific guidance as the Minister indicated, how the exemptions can be applied by universities, but I do not believe that they go far enough. For example, although there is an exemption for commercially sensitive information, how does that apply to university research? Research is a competitive business, where the challenge is always to publish first. If your findings are already in the public domain, it becomes quite difficult to get a journal to take your article. Your standing in the research excellence framework will be affected. Your ability to secure future funds, grants and contracts may be compromised. Your reputation, and that of your institution, will be hit.

Can the Minister explain what protections exist to prevent a competitor academic requesting your research data as they emerge? Universities UK, which supports this amendment and has provided an extremely helpful briefing to which other speakers have referred, has given an example of exactly this situation, in which a researcher was subject to FOI requests from a former collaborator who was now at a different institution. Another example comes from Queen Mary, University of London, where a research team was subject to an FOI request while still conducting its analysis. The university believed that,

“releasing data at the individual-participant level would prejudice publication of future study papers … and could set a precedent that may affect our ability to attract research funding and participants in the future”.

Releasing data before the process of validation and analysis is complete also carries the risk that misleading information will get into the public domain. We know that this is a particular concern in medicine, where misleading information can have serious consequences for public health. The peer-review system in the UK is one of the major strengths of our research base because it ensures that, before findings are published, they are checked by experts. This helps to ensure that poorly designed and executed research with dubious findings does not enter the public domain. As the noble Baroness, Lady Brinton, mentioned, the Environmental Information Regulations include a protection for,

“material which is still in the course of completion, to unfinished documents or to incomplete data”.

Why cannot FOI have something similar?

We all want universities to do more to work effectively with business. Indeed, the Minister of State for Universities made an announcement about this only last week. The fact that university research can be subject to FOI causes difficulties in working with commercial research partners. Negotiations can often be long and difficult. Businesses will look at the recent cases where research findings have been requested by companies with a commercial interest in the data and wonder—quite legitimately, in my view—whether they would not be better off doing research with non-university research bodies that do not carry that responsibility.

I, too, want to mention that in Scotland there is now a pre-publication exemption—on which the proposal in the amendment is modelled—which has been used to deal with exactly this point. Let me quote an example from one Scottish university, which received an FOI request for the annual report written for the funder of some early-stage research. There was no commercial value in the findings to date, but the report described avenues that could, with further investigation, yield commercially valuable results. Not surprisingly, the university wanted to use this information to apply for further funding, but that would have been compromised by releasing the report to potential competitors. The request was refused using the Scottish pre-publication exemption. Will the Minister tell the Committee whether he believes that it is right that researchers in Scotland and, as the noble Baroness, Lady Brinton, has said, in Ireland and the United States should have this protection that our universities do not have?

I note that Universities UK is not alone in calling for this House to scrutinise the way in which this Bill relates to university research. The Wellcome Trust, the Association of Medical Research Charities and the Ethical Medicines Industry Group have all written to noble Lords in relation to this, especially in support of the amendments tabled by the noble Baroness, Lady O’Neill. I urge the Minister to consider whether he can accommodate these concerns by accepting this amendment. I do not believe that it will do any harm. It is clearly limited in its scope and it could do a great deal of good.

[Lord Scott of Foscote]

My Lords, I rise to express my complete support for the spirit and intention behind this amendment, which has been so cogently and lucidly explained by the three noble Baronesses in whose names it stands. I rise simply to make a drafting point on the amendment, which some of your Lordships may think is a rather tedious reason. It proposes two conditions to be applied to,

“Information obtained in the course of, or derived from, a programme of research”,

to enable that information to qualify as exempt information. The two conditions are under paragraphs (a) and (b) of new subsection (1A) that the amendment would insert into Section 22 of the Freedom of Information Act.

My point relates to the condition under paragraph (a), which states that,

“the programme or project is continuing with a view to a report of the research … being published by”,

bodies specified in paragraphs (a)(i) and (a)(ii) in the amendment.

I puzzled over the identity of the possible publishers who would fall under those categories. Paragraph (a)(i) refers to,

“a public authority as defined by section 3 of this Act”,

which would exclude other public authorities that are not so defined. Paragraph (a)(ii) refers to “any other person”. When the word “person” is found in statute, it may include, according to the Interpretation Act,

“a body of persons corporate or unincorporate”,

but that depends on the context. An authority which is not a public authority as defined in Section 3 could be a corporate or unincorporated body and could qualify as a person. It is the contrast between the two that might, if someone wanted to argue the contrary, raise some doubt.

I began to wonder why it was necessary to identify the proposed publishers at all. The important condition is that,

“the programme or project is continuing with a view to a report of the research … being published”.

It really does not matter by whom the matter will be published because anyone will do. I think that that is the intention behind paragraphs (a)(i) and (a)(ii), although the language used might suggest the contrary. Therefore, I respectfully suggest that the words in those paragraphs (a)(i) and (a)(ii), and the preceding preposition “by”, should go and that the condition in paragraph (a) should simply refer to,

“the programme or project is continuing with a view to a report of the research … being published”.

Doubt and confusion is simply raised by the attempt to specify the individuals or organisations which fall under paragraphs (a)(i) or (a)(ii).

[Baroness Blackstone]

My Lords, I support these amendments but I, of course, defer to the noble and learned Lord who is much better versed in the legal aspects of the drafting of this amendment. I ask that the Government accept the amendments in principle but possibly come back with a redrafted version with the omissions proposed by the noble and learned Lord.

Quite a lot of comments have been made about scientific and medical research, but I want briefly to speak as a social scientist. When they undertake empirical research, social scientists are heavily dependent on the agreement of individuals to participate in surveys, whether they are large-scale quantitative surveys or small-scale qualitative surveys.

I respectfully suggest that, unless this amendment or something like it is accepted, it will be more difficult for social scientists to carry out their work. Advanced data manipulation techniques make it much more difficult to guarantee the anonymity of data even where personal information has, as far as possible, been removed or redacted from data sets. I noticed that the Minister did not respond to my particular question about whether financial support would be given when extensive redaction has to take place. This causes particular concern when highly sensitive information is provided by individuals whose identity may need to be protected to save them from harm. Given the difficulties of guaranteeing effective protection of identity, the research community in the social science world has raised a number of concerns that the very process of securing informed consent from potential subjects of research may stop them participating at all. That would be a disastrous consequence.

Finally, I want to pick up the point made by several speakers about the fact that other jurisdictions have managed to come up with legislation whereby the issues raised today have been dealt with. This may be a sensitive week in which to ask the Minister to have a look at Scottish legislation passed in the Scottish Parliament. Nevertheless, I think that he and his officials should do so. Moreover, it is also very important that we look at the Irish legislation, which is rather broader based in how it treats universities for these purposes or research associated with academic work—it may not be done in a university; it may be done in a separate research institution. The noble Baroness, Lady Brinton, read out the section of the Irish Act. Mention has been made of the United States. I ask the Minister a direct question. Has he looked at those three pieces of legislation in those three countries? If so, what has made him decide not to follow the same route? It would be very helpful to have a direct answer to that question.

--- Later in debate ---

[Lord Henley]

I regret to say that the noble Baroness is now getting to the stage where she is deliberately trying to misunderstand me on every occasion. There is no desire to stop people putting in a request for freedom of information. All we are saying is that her amendment, which in effect delays the passage of the Bill while that process is going on, is not an appropriate way in which to deal with it, and brings in the political dimension to the Bill. The amendment also undermines the premise that the Freedom of Information Act is motive blind by introducing a requirement to consider whether information has been requested in connection with a particular Bill.

[Lord Scott of Foscote]

Can the Minister help me or the Committee in indicating whether law officers have given any advice on the implications of this amendment from a constitutional point of view? I have in mind the prospect of a Bill being introduced in one or other House—it does not matter which—being passed in that House and going to the other House and being passed in that House too, perhaps with a commencement date specified in the Bill. All that would be needed to become part of the law of the land would be Royal Assent. If the result of the proposed amendment becoming embodied in the statute is to bar the presentation of the Bill, passed through both Houses, prevent it from receiving Royal Assent and becoming law of the land according to its tenor and the will of Parliament, it would be a very strange constitutional state of affairs. It would mean that the previous Act would fetter the ability of the current Parliament to pass and bring into effect its own Bills. Does the Minister think that this is the sort of point on which a constitutional opinion from the law officers would be necessary?

[Lord Henley]

My Lords, as I am sure that the noble and learned Lord will be aware, we never comment on the advice that we might or might not have received from the law officers, and I am not prepared to comment on this occasion. However, I join the noble and learned Lord in speculating on the very odd constitutional effects that an amendment such as this could have on the passage of legislation. It cannot be right that by submitting an appeal an outside party can restrict the passage of legislation. That is the crucial point in relation to this amendment. I will give way to the noble Lord, Lord Wills, in a moment if he can just keep calm. It would restrict the passage of legislation in Parliament and in effect govern how this place or another place does its business.