EU Action Plan Against Migrant Smuggling (EUC Report)

Lord Selsdon Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Selsdon (Con)]

My Lords, I have no locus standi in this at all and therefore may be an ungifted amateur intervening on other people’s activities, but at the time of national service, I wanted to go into the Navy, which was quite a difficult thing to do. Somehow, I managed to get down to Portsmouth and asked if they would take me, and they said I had to go through the normal procedures but there was a little bit of a crisis coming up. Before I knew it, I was taken on and told that if I wanted to get ahead, I had better take a few exams and they were looking for new officers, but I was totally unqualified.

They put me on a crash course and somehow I managed to pass. Before I knew it, I was going out effectually to the Mediterranean, to Cyprus and Suez, to find myself as a junior officer on board a coastal minesweeper called HMS “Floriston”, which was to be a patrol vessel for illegal activities in the whole of the Mediterranean.

It was a great experience for me, because the whole Suez situation was just coming on and there were a lot of illegal activities of smuggling and aggression. We would do night patrols, which meant that I as the most junior officer was the one who was up all night and then had to get up early in the morning. We used to board vessels with an outboard and a rubber dinghy, because the main barge did not work. We found that a surprising amount of illegal trade was going on—but it was not illegal in any way other than people trying to avoid taxation. In our stop and search for things, we found an amazing pattern of movement of people and of smuggling of people, even in those days, which it is hard to understand now.

Later, I found myself involved in the banking world. I was dealing with trade and became chairman of the Committee for Middle East Trade, which had responsibility for trade development for the whole of north Africa and anywhere to do with the Middle East. I learned a lot from our Arab friends, all of whom are traders by nature and many of whom were great seamen, but it was the business of stop and search for illegal activities in the Navy that taught me. We have found that there is an awful lot of this going on right across the Mediterranean today.

I found that I had got hooked, and something I had longed to do was the travels of St Paul. So I went out and bought myself a sailing boat—not a particularly great one—and spoke to a bishop or two, got the route and sailed around the Mediterranean following St Paul. I then found to my surprise that the boat was quite acceptable for other people to charter, so I did that activity for 10 years. But in the back of my mind was the movement—the migration—of people. I used to study the maps and look at where they were and where they came from.

Even today, I find it a difficult world to work and live in. I am not sure what we can do about it, but I believe that greater co-operation with the Middle East might be helpful, because it is difficult to stop and search in many places. I would be quite like to be back in the Navy—but anything that I can do to help the committee I would willingly do.

Immigration Bill

Lord Selsdon Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Lord Selsdon (Con)]

My Lords, as I nervously got ready to speak, I noticed there was a mass migration from the Benches opposite. I should like to speak on migration as, despite having worked in research in this world, I feel a bit confused. Information from the Commons Library gave me some help:

“The origin of migrants coming to the UK is recorded in three different ways: by nationality, country of birth, and country of last residence. The first indicates the legal status of migrants, the second records their historical origins, while the third identifies the geographical sources of migration to the UK”.

However, I am still a little confused as to whether migration is a benefit or a cost. I looked at the overseas population of the United Kingdom. Tables that were produced recently list the countries of origin from one to 25. Unsurprisingly, the first is India, followed by Poland, Pakistan, the Republic of Ireland and then suddenly Germany, Bangladesh, South Africa, China and the United States of America. These are not necessarily economic migrants, but they are quite significant in the world that we work in now.

What can those coming into this country expect? The key issue is employment. The difficulty with employment is that we often have to deal with name changes, and it is particularly difficult to obtain relevant information. Some of us may remember that there were always parts of London that might be handed over to Africa or elsewhere—more recently to eastern Europe—but the basic opportunities that we face at the moment concern what to do with the migrants. Who or what is a migrant and why have they come here?

The Commons Library suggests that the origin of migrants coming to the UK is recorded in three different ways—nationality, country of birth and country of last residence—which give the legal status of migrants. Another record is their historical origin, but nowhere do the figures seem to show what competences they have and what they could bring to this country. Many are skilled and many come from interested former territories. I remember well, from when I worked in the research world, the scramble for Africa. Suddenly we look and say that Africa is rather a doubtful place and we do not want any more people coming from there. We look at banning migrants or trying to limit their number, instead of assessing why they migrated in the first place. I would suggest that they migrated because the economic, political and maybe social conditions in their mother country or country of residence were unacceptable, and the element of fear took hold as persecution began.

We have had mass migration into this county by large numbers of people, including, in 2014, 22,000 from India, 13,000 from Pakistan, 8,000 from Nigeria, 5,000 from South Africa, 3,000 from Bangladesh and 72,000 others. Have we made a plan for what we can do to help them when they come? There is residency, certainly, but this needs accommodation and employment. Many certainly have excellent skills that we have often forgotten about. Those who may have worked in Africa tend to be good carpenters, because they have worked with wood, but are not necessarily good welders. One looks at the origin of this immigration and how it could possibly be reversed. Do we have enough employment opportunities in this country at this time to provide a working wage for many people who come in, whether they are escaping persecution in their countries or for purely economic reasons? Alternatively, could we find a way to use those resources to redevelop their own country of origin?

I think of Africa, for which I have a great affection and a lasting fear, from times of trouble in which I have been involved. We look at the scramble for Africa and migration to and from Africa and the vast resources that the continent has at this time that are underutilised. One wonders whether we could reverse what was called the scramble for Africa, when everyone saw it as an area of the world with great economic potential, whereas now it is an area of concern. If we look at those who have moved here from Africa, one would like to know what are their skills and how we could encourage them to return to their host country if the reasons why they left were entirely due to fear.

I have always enjoyed charts and maps of the world and have made it clear to noble Lords by boring them on many occasions that if we look at the countries of the world which have the greatest influence—I take the landmass of a country and add to it the economic exclusion zones of 200 kilometres or so—we find that immediately we come up with the United Kingdom having almost the largest territorial rights in the world. Add to that the French, who of course had their scramble for Africa, as we did, and we find a great opportunity for co-operation.

The question is, in this particular problem or opportunity that faces us at the moment, with which other countries can we co-operate and what sort of accords could we have? I tend to think that Africa is one of the greatest opportunities for that and look at those countries who had serious interests in the raw materials of Africa, which could be developed again. One, logically, is the French in the north—but we must not forget the Italians, for their part, the Germans or the Belgians. Right across the continent of Africa, there were those countries. Is there a way that we could bring them together for a renewed initiative to develop those more impoverished countries of Africa that have significant raw materials, including labour? That is something I should like the House to think about.

Taxi and Private Car Hire Market

Lord Selsdon Excerpts

Tuesday 20th October 2015 Lords Chamber

[Lord Selsdon (Con)]

My Lords, I am very grateful to the noble Lord, Lord Bradshaw, for asking this Question and also to the noble Lord, Lord Borwick, who will speak after me and whom until recently I failed to associate with one of my favourite companies, Manganese Bronze, which makes the cabs—TX1, TX2, TX3 and the Fairway, which I have always wanted to buy and own myself.

However, there is a little more to all of this because the cab is iconic and the situation is very intriguing at the present time. Having been on the Information Committee, I do not have to do very much in my speech today because the House of Lords Library has produced a fantastic and thick briefing pack that covers all the issues. What is causing concern at the moment is not so much the rickshaws that will be arriving shortly when the flower shows open around Sloane Street and thereabouts; it is the application and use of taxis themselves and the control and management of the taxi system. There seems to be a sort of subliminal attack on the cab driver at the moment, which is confusing issues because cab drivers in general have been extraordinarily fair and are extremely honest people. I hardly ever used a cab until my knees went; when I was told I needed new knees, I then had to start taking cabs, which has been rather an expensive business.

The issue at the moment lies in the row going on within the cab trade between this new organisation, called Over Here or Uber or whatever it might be, and the cabs themselves. If noble Lords want the background to it, I recommend the Library pack which covers almost everything. There are difficulties in the future. It is being said that a cab is not really a cab if it is linked to Uber—Uber is not a cab, it is an organisation. How does it all fit together? I would rather we went back to being a little bit simpler. A situation has arisen in which TfL controls the number of private hire vehicle licences, which now stands at 89,000 and is increasing at the rate of 2,000 a month—therefore, 24,000 a year. This is an administrative and bureaucratic worry. The number of enforcement officers is also too low to control the behaviour of private hire vehicles touting in the street, both licensed and unlicensed. This touting by private hire chancers shows that it is too easy to get private hire licences. There needs to be some way of coming together on this; perhaps only black cabs should be allowed to respond to a street hail. The confusion within the industry is rather worrying.

I loved the black cabs that came from my noble friend’s company, because you could talk to the drivers. They were very proud and they knew when it worked. Sometimes they would almost give you their home number if you wanted a bit of help. I got used to the mistakes—when they had a Fiat gearbox that went wrong, or something else—but gradually they managed to get it right. One of the things I enjoyed most of all, when we had a major mission to Japan, was the idea of selling taxis to Japan, as well as Rolls-Royces and Bentleys. When I was on the Trade Board, we made the mistake of forgetting that the Japanese drive on the same side of the road as we do, so we had left-hand drive vehicles, which made it rather difficult. The suggestion was made that left-hand drive vehicles were provided deliberately, so that being nearer the pavement they could open the door and let the passenger out on to the street.

We have a little bit of a row coming up. I would really like to have a Fairway cab. I think it was the best ever made, and so do a lot of the drivers. We all know that most cab drivers live in east London and either play golf or cricket or fish. We need to look not so much at the vehicle itself but at the cab trade as a whole, which is very united. I have been briefed by many of its members, who are very concerned about the Uber business at this present time. That concern is getting to very serious levels, because we are not quite sure what Uber is. Is it an organisation or an association? Suggestions have been made that there is a shortage of compliance officers; that we should regulate licence holders; that only black cabs should be allowed to respond to a street hail; that all private hire should be pre-booked and bookings passed to an individual driver; and that the queues of masses of quasi-cabs or cars picking people up outside restaurants late on Saturday nights should be banned because this is causing anxiety.

We need to permit TfL to control the number of private hire vehicle licences, which, as I said, are at 89,000 and increasing rapidly. We are in the midst of a bureaucracy. I would like to know what the Government feel they can do to help. We are probably the best cab manufacturers in the world as far as the disciplines and organisations we have are concerned, but we have a row between providers of services—between those who drive cabs and those who feel that you can do everything by an electronic system. In my time here, even having been on the Information Committee, I have still failed even to send an email when the system is down, so I cannot speak from great experience. What I do know is that we have a really great cab trade that we should protect. We should stop this argument going on between the various parties at this time.

Immigration and Security

Lord Selsdon Excerpts

Thursday 4th July 2013 Lords Chamber

[Lord Selsdon]

My Lords, I am most grateful to my noble friend Lord Marlesford for giving us the opportunity to discuss this issue. He and I often sing from the same hymn sheet, but he is perhaps more of a highly trained and intelligent Rottweiler while I am just a friendly Labrador, concerned about not upsetting too much my noble friend on the Front Bench when we gang up together. When I first joined your Lordships’ House, goodness me, some 50 years ago, I asked the then Leader of the House what I should do about a maiden speech. “Talk about something you know about”, he said. I replied, “Sir, I do not really know about anything”. He said, “Well, talk about your childhood, then”. I have suddenly realised that there is an opportunity, in this debate on immigration, for me to do so.

When the war came in 1940, with my mother and my younger sister I was suddenly migrated to the United States for safety purposes, so we were told. A year later my mother had to return to the United Kingdom because her own mother had died, her brother had been shot down and killed, and there were other family matters. However, she could not get back to us. As migrants or immigrants, we were moved from the United States up to Canada, to a form of nursery school run by a wonderful woman called Sister Hilda. She had had a school in Rottingdean where she had looked after children of empire while their parents were away and could not be with them. So there I lived and I learnt to speak Canadian. I thoroughly enjoyed myself. Occasionally I had to write letters to my mother, and when the other I day I found them, I saw that they were all about the war.

In that environment I was to some extent an immigrant, but it was rather more complicated than that. My father, who I did not see for many years, and my mother were called Selsdon, but the name of my sister and I was Mitchell-Thomson. As bright young children, we naturally worked out that we were probably not the children of those parents, and that perhaps ours had been killed in the war or even, I managed to find out, that we were possibly illegitimate. However, it was too long a word for me and I did not understand what it actually meant. This went on for quite a period of time, but then with great aplomb, my mother, who was then serving as a driver in the RAF, through a friend managed to get us on board a Canadian troopship and thus come back to the United Kingdom.

When we arrived we were immigrants into the United Kingdom and we were treated as such, but our name was not the same as that of our parents. We had labels around our necks so that we could be identified when we were taken off the train in, I think, Olympia, having sat in the ship in Liverpool for some three or four weeks. I was quite happy about it because the Canadians were kind to children. They taught me all about things and they let me clean their guns. I loved the idea of the war and I really wanted to join up. The difficulty was that when we came back to our real life over here, I was an immigrant and I was to be sent off to school. However, we did not have any clothing coupons so I could not have a school uniform. A young boy quite likes to be in uniform, so it was rather difficult. I could have a school hat, but not the uniform. One remembers the difficulties of being, to some extent, a foreigner in your own country.

Over time I have interested myself an awful lot in the Commonwealth and in the question of identity. When the identity cards Bill was going through the Lords, I went off to do a trial run. We were told to have biometric pictures taken in some vans outside. When they did me the first time the electronic voice said, “Not recognised”. So, without telling anyone, I went off to another van and tried to do the same thing, but again the electronic voice said, “Not recognised”. I suddenly asked, “Why do we have to have identity cards?”.

Then I learnt in the course of our debates that in this great country you can call yourself what you like. There is no such thing as a legal name. The nearest you get to one these days is in the National Health Service. Some bright young NHS statistician in the NHS must have realised that you can give your date of birth, and that is all, because very few people with the same name are born on the same day. Once the NHS has you on the list with your date of birth, it keeps on writing to you suggesting that you should be examined, treated and everything possible should be done, and it then gives you a code name. However, you cannot remember your code name.

You find in our great society that the names of people have been lost and that we all have numbers to remember. Very few people can remember more than a certain number. The noble Lord, Lord Ramsbotham, will probably agree with me that you can always remember your service number. Mine was PJ963040—in fact, two alpha and six numeric are the best way of remembering anything. It is the best method of identification.

If it is not necessary to have an identity card, what is a passport? Is it an identity card? I had a problem with this when I worked internationally. Often my passport was in for a visa somewhere or other. I did not think that it would necessarily matter, so I would travel without a passport. Once when I was on the board of a company I went to Italy and arrived there without a passport. I thought that they would wave me through as usual, but it was the day after the Heysel stadium disaster where, as noble Lords may remember, British fans caused a lot of deaths in a stadium in Belgium. The passport people, who I knew quite well, said that they could not let me through without proof of identify. I said that I did not really have anything, but then I realised that I had one of my father’s suits. I showed them that from the label inside it was quite an old suit and therefore it was proof of identity. They took the jacket, then came back and said, “The jacket’s gone through. If you take your trousers off, they can go through as well. But under the current regulations we cannot let you through. You do not have actual proof of identity”. I had to wait to be identified.

We do not believe in carrying proof of identity here in the United Kingdom—nor do I believe that we ever should—but perhaps there is a case for some form of it. Some time ago I lobbied about whether it would be possible for Commonwealth countries to have a slightly different passport from non-British nations, which would seem to be appropriate. Alternatively, would it not be possible for all immigrants to be required at all times to carry a card that was proof of identity, which might perhaps help them in their activities?

I have tried to search and work out what the level of immigration is. The best way to do it is to ask the immigrants themselves. This morning I was woken up as usual by 11 Romanian builders. I complained to them that there was a chap at the end of the road who was one of those who sells you the gold ring that he drops on the ground. You pick it up and it has got “19” on it and he says, “Can you give me some money?” and you say, “Are you an illegal immigrant?”. They have got to know me now.

The Poles, of course, colonised a good chunk of Putney but they are among the best plumbers, without any doubt. All these immigrant groups, once they are established, become extraordinarily British and they want to educate their children; above all, they want to see things bettered. If you are looking at televisions, audiovisual, it is the Caribbean that has the skills. Do not ask me why. Throughout the whole system those people who have been integrated into our society have actually developed skills.

The questions we are facing are: how many more people want to come here? How many illegal immigrants are here and in what way can they be controlled or administered? Usually it is with the associations themselves. Having dealt with the Arab world for many years, I go to talk to people at the mosques and you can find out what is going on. Of course, the greatest value is the amount of information you can get from each other in exchange, particularly on situations such as Egypt at the present time.

I do not know what we can do about the passport situation or immigration controls. I do feel that it has gone wrong. For those of us who travel quite a lot, if you turn up at Calais to go through the Channel Tunnel, you will find two of the gates open for cars to go through and the others shut; you may have to queue for half an hour or longer and miss your connection. It is the same at all the airports. In most other countries, the waiting time is less. Is it because we have more people coming here or more people wanting to come here than other nations or is it that we cannot cope? Do we really need a new airport for ourselves?

Perhaps the Minister can give us some idea of what proportion of the inflowing traffic into the United Kingdom is non-British. It is a growing amount and the excuses and reasons are given that we are a tax-friendly nation. But perhaps more than anything else, the world feels that children who are brought up and educated in England may have a better chance in the future.

If we feel that the Commonwealth is important, as I have always done, we should recognise that there is more that could be done with it. When I used to sit with Enoch Powell a long time ago, he suggested that we had a Commonwealth passport. Now one says: what is the benefit of the Commonwealth and what are the opportunities? If we look at illegal trafficking of people, which tends to take place within the 200-mile limit of each country, we find that the EEZs—economic exclusion zones—of the Commonwealth are equivalent to 60% of the world. An awful lot of the trafficking now is maritime. That is perhaps a worry if it cannot be monitored.

I would quite like to see whether we could have a Commonwealth identity card or some sticker or visa in the Commonwealth. I would also like to find out why even in your Lordships’ House we should be required to wear identity cards. We should know each other but my latest research indicates that very few of your Lordships can put more than 100 names to faces. The doorkeepers cannot quite do 100. My difficulty on these Benches is that I see only the backs of the heads of my noble friends, whereas I can see the faces of noble Lords opposite, so in general I feel I have a greater recognition of them.

The question to the Minister is: could we please think of some method of enabling people, if they wanted to, to identify themselves with a piece of paper or a card so that they may not appear to be stateless?

Food Security Policy

Lord Selsdon Excerpts

Thursday 24th May 2012 Lords Chamber

[Lord Selsdon]

My Lords, I should begin by declaring my interest as a rather faded and ancient peasant farmer producing wine and a few other things in Provence, although with nothing like the elegance of my noble friend Lady Miller, who has introduced this great debate.

One thing about being tinged with ancienty is that you learn that in order to determine the future it is not a bad idea to look back to the past. Perhaps we need not go as far back as my noble friend Lord Caithness, to the ice age, but in my case it is fairly simple. It is an accident of birth than entitles me to be a peasant farmer and I am proud of it. Our first wine was shipped to what is now the United Kingdom in the second century BC, to Hengistbury Head, near Christchurch, and presumably it went up maybe to Stonehenge. Your Lordships will perhaps remember that Bordeaux was also developed from Provence. We ran the whole of Bordeaux for many years and managed to take control of Eleanor of Provence, Eleanor of Aquitaine and Eleanor of Castile.

When I joined your Lordships’ House, I listened to debates, sitting on my own. I have made the point before that I did not know that when the Government changed you changed from one side of the House to the other, as nobody told me at the young age of 25. My Chief Whip then suggested that it might be a good idea to make a maiden speech. I have to say that I did not know what the word maiden meant. When I asked what I should speak on, he said I should speak from my own experience. My own experience was relatively limited, due in particular to a shortage of food during the war, where, at my prep school, we had only Pom, Spam and powdered egg. I had been brought up in Canada during the war and when I came back I was practically starving.

I learnt, too, that there is a strange thing about the United Kingdom, with a family who were the first people to ship meat from Australia and exploited sugar in the Caribbean. We are not self-sufficient. For the record, I will give the House the Government’s food situation in the year of my birth, 1937. We had to import 93% of our maize, 86% of our barley, 64% of our wheat, 73% of our meat and 95% of our cheese—after the recession, there was a need to produce less milk and more wheat—96% of our tea, naturally, 90% of our cocoa, 79% of our coffee, 79% of our rice and 68% of our sugar, as well as 67% of our butter, 90% of our spices and of course more than 80% of our fertiliser. Much of the latter was guano from Latin America, where William Gibbs “made his dibs on the turds of birds”, as I think it was explained originally.

At my prep school, I got into trouble when I said I had eaten a banana, because no one had seen a banana. I think, and will put on the record in Hansard, that there was a shortage of food. As my noble friend was explaining just now, there is enough food capability and production in the world. If we look back at our own history and the Council of Trade, the reason why we went out into the outside world was because we needed food. We went out to grow and produce all over Africa. The whole of the Commonwealth began initially not so much with the mineral resources but with the potential to create added value on the land.

Why did we get rid of the crown agents of the Commonwealth Development Finance Corporation and why do we not look back to what these countries actually produced? In the days when I did some economic research into agriculture, it was usually to predict what was going to happen to food and I always got it wrong. I came to travel through India and Africa and then gang up with the French in Francophone territories, compete with them, and ask where, what and how we produced. Naturally, sugar was one of those things. Sugar came from the Caribbean. I remember being down in Cameroon with my noble friend Lord Jellicoe when he became Leader of the House and a director of Tate & Lyle, sitting with the president there, who said, “Please, please help us to grow sugar with the Garoua sugar project”. However, Tate & Lyle got a bit nervous about Africa because it was a dangerous place to go to. They had forgotten that it was where we had done extremely well. They had forgotten, too, that Cameroon had named its capital after Victoria because the first slaves had sailed back from Jamaica and were so proud of what we had done to get rid of the slave trade that there was that relationship.

I turn to what I suggest we should do. We should go to these countries where we were before, place orders for what they used to produce and could produce, and give them an off-take agreement. With that agreement, they could fund almost anything. One of my favourite areas, which I have raised before, is the Sudan, which was to have been the bread basket of the Arab world. The Arab Fund for Economic and Social Development under Saeb Jaroudi provided, for people like me, a major grant to look at the possibility of growing grain and exporting it, as we had done before in other parts of Sudan with cotton. If we look at our shortage and what we need to import, and can somehow find a way with the private sector to direct that demand into placing orders where we, using the latest techniques and avoiding the problems of pollution, can help to grow, to deliver to the ports and to have the off-take, we are in good business.

Not so long ago, I suddenly found that I met some gang from Chicago who were very interested in all of this. Some wanted to speculate on the grain market and others on production. A lot of help on this, surprisingly enough, came from Israel. They then suggested to me that it might be possible to produce pork bellies. Thinking of some of the prejudice of the Arab world to the pig—but the pig is a forager and the Romans walked around with it—I was quite intrigued. They wanted to know when grain could be produced because there was a forward market. What I am saying is that if we can use our knowledge, our technology and our historic relationships to revisit these countries and to sit down and help them to grow what we would willingly buy, we could make a major contribution.

Protection of Freedoms Bill

Lord Selsdon Excerpts

Tuesday 24th April 2012 Lords Chamber

[Baroness Hamwee]

My Lords, picking up on the point of the noble Lord, Lord Butler, I think everyone’s heart is in the right place on this matter but that we are struggling to articulate what is in our hearts in the right way. I am with those who, as the debate goes on, increasingly see complexity in this matter and a need for us to be very careful in the way we do what we are all trying to do.

We have reached a point in the procedure where what we agree to in the wording has got to be very precise and correct. Some noble Lords have said, “Send this back to the Commons and it can sort it out”. However, we know that in practical terms that would be very difficult within what is now almost a matter of hours. To be rather boring, perhaps necessarily so, on the drafting, I said on the previous occasion that I find the term “demonstrate” very difficult. It is not one which I am accustomed to seeing in legislation and I do not know where it rests in the evidential hierarchy, if that is the right way of expressing it. I am worried about the possibility of judicial review around “demonstrate” within new subsection (3)(b)(i).

I am also quite puzzled. I think I am correct in saying that what the Government are proposing in Clause 40(1) is discretionary, and so could come within the review; that Clause 40(2) is not exclusive; and that we, as a House, would be asked to consider what is proposed in particular instances through the statutory instruments procedure. Sometimes, notwithstanding the Merits of Statutory Instruments Committee, of which I am a member—I was not there this afternoon but I read the green bananas order realising that it might have some application today—it is incumbent on all of us, as a House, to be very diligent with what is coming before us via statutory instruments. However, if there is discretion—I think the proposals of the noble Lord, Lord Marlesford, are not mandatory but discretionary—then, in a sense, what is proposed is something and nothing. However, we are talking about them as if they are mandatory.

As to noble Lord’s reference that, essentially, future Parliaments may say, “Notwithstanding that a statute says X, Y, Z, it shall be something else”, again that may be something or nothing. However, I wonder what implication it has because no Parliament can bind its successors, as we know.

This brings me back to thinking that we need the review which has not only been promised but is required. I am entirely with those noble Lords who say that two years is too long given the demands that we are all making. It is easy to ridicule departmental inquiries. As I had understood it—I have never been in government —it is the departments that do all the work, with Ministers being advised by them. So we should not be too dismissive of the departments. However, the work needs to be done more quickly than under the timetable the Government are currently setting, and I for one would urge my noble friend on. If the Government can see their way to a quicker exercise, that might take the sting out of this.

I ought to say, finally, that I am vice-president of the Chartered Institute of Environmental Health. However, I have not been briefed by it, or even discussed it with it, and it has not been in my mind as in any way influencing what I have said.

[Lord Selsdon]

My Lords, I find myself in a very difficult position, having begun this subject in 1975 and taken three Private Members’ Bills through the House. I am extremely grateful to my noble friend Lord Marlesford, who has a much more aggressive and attacking attitude than I do, being a man who has journalistic abilities. I am a simple person who simply says that there is a logic here.

First, you have to find out how many powers of entry there are. We began by asking questions of Ministers, none of whom knew what their powers of entry were. We worked out together that there were 584 and then made a joint arrangement with the Home Office to conduct a review, which took 18 months. We got up to 800 and then to 1,100. Finally, with the support of the Home Office, we found there were 1,200. However, this was not enough, because individual Ministers still did not know what their powers of entry were. All powers of entry relate to individual ministries, whether to Defra or any other ministry. I suggested this to my noble friend in Committee but did not want to speak again because one says the same things again and again. Even though some of your Lordships have passed on and some have never heard what one has said, repetitive Peers are not good creatures.

I therefore suggested to my noble friend that he put the latest list of powers of entry in the Library. He was rather reluctant to do this and said that we could see them on the Home Office website. However, that is quite difficult to access. Fifty per cent of your Lordships are not what I would call electronified and therefore do not know how to access websites. My noble friend wrote to me the other day and said that it would be placed in the Library. I am on the Information Committee and it is not yet there. Perhaps it could get there quite quickly.

My objective today is not to suggest anything. The help that I had was from the party opposite, which in the beginning was slightly cynical about all this. However, it went out of its way to say that this was a non-party issue and that we needed first to define what those powers of entry are and secondly to make sure that each ministry and Minister knows what their powers are and how they could be applied. There was then a separate exercise in respect of a code of conduct. That was going to take a further period to review, although we worked one out in a simple morning sitting around a table. You would say please and thank you and identify who you were. You might wear a uniform. It was not a very difficult exercise.

I am not saying that the Government are prevaricating in any way. I find this very difficult. Trying to be non-party on this, I should probably not vote for or against anything. However, the Minister should do what he can to reassure the House that this matter is under control. There is no need for another two-year review. I could get it done by the private sector pretty quickly.

I am very grateful to my noble friend for showing the attitude that he has. The noble Lord, Lord Marlesford, does not give up once he is on to something and does not lose the scent. I am very grateful to him for doing this today. I do not want to go against any party Whips, but I did say to my own party Whip that there might be an occasion when I could once more be a little bit independent for a short period. However, I urge him to take matters further.

[Lord Rosser]

My Lords, the noble Lord, Lord Marlesford, has explained that his amendment seeks to address the objections that were raised by the Government to his original amendment, which was passed by your Lordships’ House but did not find favour in the other place. As the noble Lord has said, the amendment seeks to address what he has described as the “blanket approach” criticism and has sought to meet points raised in the other place by including officers of the Serious Organised Crime Agency and members of the Security Service in the exceptions.

The amendment provides that,

“a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered … in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought; or … by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power”.

The amendment goes on to say which persons may be specified in such regulations, but also says that it,

“need not be limited to”

such persons.

I wish to refer, as an example, to trading standards officers, who are one of the five persons specified in the noble Lord’s amendment. Trading standards officers do not currently have, and have never had, a routine power of entry into premises used solely as a private dwelling place. If the trading standards officer is dependent on the first criterion—the power of entry without a warrant or the agreement of the occupier—the difficulty arises from the fact that the breadth of their work is considerable and there are many and varied reasons why such an officer may wish to visit a business.

The first criterion means that any time an officer entered a business without a warrant or without the agreement of the occupier of the premises because they believed that the use of that power of entry would be frustrated if a warrant was sought, they could then be open to a legal challenge and the need to prove a negative: namely, that they could not have achieved their objective if they had applied for and obtained a warrant. That could be difficult to prove and would certainly be time-consuming when trading standards officers are already under pressure. It would probably result in trading standards officers entering premises unannounced much less frequently, to the detriment of their vital public protection role. Without having a power of immediate entry into business premises, trading standards officers would find it more difficult to carry out their basic day-to-day functions of protecting the public and their local communities, since they could have the barrier of possible legal challenge every time they sought to act swiftly.

Unfortunately, the second criterion, which is new, would leave it up to the Secretary of State to decide whether to give trading standards officers and any other officials the right of power of entry without a warrant or the agreement of the occupier of the business premises, unlike the noble Lord’s previous amendment, which gave such power full stop without being dependent on or waiting for the Secretary of State. If the Secretary of State does not, by regulation, give that power—and no one knows which way a particular Secretary of State would jump—it would make it much more difficult than now for trading standards officers to carry out their role of protecting the public and local communities. It would also make it harder to resist a legal challenge under the first criterion, on the grounds that trading standards officers were seeking to exercise a power that the Secretary of State had declined to give them by regulation. My understanding is different from that of the noble Lord, Lord Marlesford, on the position of the Trading Standards Institute on his amendment.

We understand the intentions and objectives behind the noble Lord’s amendment and the safeguards in relation to powers of entry that he is seeking to achieve. For that reason, we will not oppose his amendment if it is taken to a vote. However, we do believe, for the reasons I have mentioned, that in some instances the noble Lord’s new amendment may well make it more difficult for people such as trading standards officers to carry out their vital public protection role. For that reason, if his amendment is taken to a vote, we will abstain on it.

Protection of Freedoms Bill

Lord Selsdon Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Lord Selsdon]

1: Clause 38, page 33, line 41, at end insert—
“32C Evidence gathered by non-public bodies using directed surveillance and covert human intelligence sources
Public bodies shall not adopt for the purpose of a prosecution evidence of offences which attract a maximum custodial sentence of six months or less gathered by non-public bodies using directed surveillance or covert human intelligence sources.”

[Lord Selsdon]

My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.

The amendment follows on from the Private Member’s Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people’s homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.

When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister—the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like “Stonewall” Jackson or Cool Hand Luke, who plays a bat and will not let things go past him—confirmed at that time that he accepted the proposals in the Bill would ban the use of covert surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.

When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,

“see whether we might come forward with some suitable change”.—[Official Report, 13/12/11; col. GC 329.]

He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.

It seems that my amendment was what the “pros” call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.

I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:

“Abstract nouns in -io call

Feminina one and all;

Masculine will only be

Things that you can touch or see”.

Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.

Other matters came up. One of the difficulties with Private Members’ Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people’s freedom. We should debate this matter further. I beg to move.

[Lord Marlesford]

My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.

However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.

We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.

--- Later in debate ---

[The Minister of State, Home Office (Lord Henley)]

My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.

My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.

My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.

My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill—I have explained on a number of occasions why that is not appropriate—but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords—I think he said 50 per cent of them—cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities—in particular, the Library, which works wonders in providing noble Lords with access to such things.

We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.

[Lord Selsdon]

I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Protection of Freedoms Bill

Lord Selsdon Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Vinson]

My Lords, first I apologise to the House for arriving late; my train was very late. I was particularly anxious to come to what I regard as an extremely important debate on fundamental freedoms. I join those who congratulated my noble friend Lord Marlesford on what he has done. It is apparent that the Minister, too, is sympathetic. However, his solution of a review carried out by the departments that have these powers is rather like asking a druggie to prescribe his own dose. Knowing the Civil Service, I predict that it will simply perpetuate the status quo. Frankly, that is not good enough. I suggest to the Minister that when he sums up, he should promise to strengthen the review mechanism so that other eyes, outside the quangos and departments concerned, can look at the necessity of the rights of entry and bring fresh thinking to the matter.

[Lord Selsdon]

My Lords, I hope that I may be able to help the House. This has been a 10-year journey for me. Three Private Member’s Bills have gone through the House. I have thoroughly enjoyed myself. Having worked in one of the biggest bureaucracies in the world—Midland Bank—I enjoy the relationship with bureaucrats.

Those who work in trading standards are great people. I have written to them many times. A few days ago they sent me an e-mail at 4.13 pm. When I rang back at 4.30 pm they had gone home. However, we are good friends now and I am inviting them all to tea. If a trading standards officer goes into a restaurant or food shop, they go in either as themselves to buy something or, if they are going in to inspect, they have to be completely schizophrenic.

I wanted to see if I could help. As a Minister, the noble Lord, Lord Henley, knows well, and will probably let us know in his response, exactly how many powers of entry his department has at this time. There was a problem when Ministers did not know what their powers of entry were and numerous Parliamentary Questions failed to get an answer. Finally, with the great help of the party opposite, we got the final part of the Bill through. It was difficult because no one really knew what it was about. I then thought we should have a period of consultation. I had not raised the matter before. I wrote to the LGA, every local authority in the land, every bishop and vicar and everybody at a local level, saying that we had a new private website and that if they wanted to know what the powers were they could contact the website. We did that with considerable difficulty. I also got in touch with Citizens Advice.

I kept coming back to try to give advice to people. The noble Lord, Lord Henley, does not accept advice willingly because he sees the end game very quickly. He has a very quick mind and found me rather a nuisance. Therefore, I introduced a few amendments in Grand Committee but have decided not to introduce any now.

The main objective of the three Bills was to promote the introduction of legislation after the election that would prevent officials from entering people's homes, land or places of work without permission or a warrant, and would introduce a suitable code of practice. We drafted such a code; the noble and learned Lord, Lord Scott, will remember it. The Minister does not seem to want a code of practice at the moment. He just says, “We’ll put one in”. If we do not have a code of practice now, we will have a problem with powers of entry.

The second thing I asked for was a list. The Home Office stated that it could not put this into the Bill because by the time it was put in, a piece of secondary legislation might have changed it. I said, “Can we not have a list?”. We could not really have a list, so I thought of another solution. In preparing the Bills I had great help from a professor at Lincoln University. With Oxford University Press, he regularly publishes the laws of search, seizure and entry. A new edition is coming out. They have agreed to co-operate with the Home Office, which has already been in touch with them. Naturally, I am not necessary in the loop. However, we will have an official publication that will be updated from time to time, and a website. I would like to be able to put that in the Library. It is, however, extraordinarily difficult, as a Back-Bencher is not allowed to put anything in the Library. The only person who can do so is the Minister. If I do get these things together, could the Minister arrange for me to have permission to put it in the Library? Could he also agree that there will be a code of conduct and that he will produce it before this Bill is finished?

This has been a most interesting time. I have bored to death not everyone—because there were not a lot of people around—but I have certainly bored Hansard. Again and again one has to re-type every Bill. Being on the Information Committee, I have the benefit of PICT. In the latest list I managed to transpose three Bills, but the Home Office has not picked up which ones they were.

I am very grateful to all those who have helped on this. I support my noble friend Lord Marlesford because I support him on almost everything he does. I am extraordinarily grateful to the party opposite for raising some serious problems. They looked at me with a certain cynicism to begin with, but I think we are good friends.

[The Earl of Erroll]

The point about passing at least two of these amendments is that at least we can come back and tidy them up at Third Reading, because certain people have criticised their wording. If you do not pass them now there is no pressure to put anything in at Third Reading. This happens quite frequently and stalls the whole thing.

The whole point is that householders need to know what their rights are. They cannot possibly begin to know if there are thousands of different powers of entry, so there need to be some very simple rules that apply universally, which is what we have to come up with eventually. I support the first two amendments in particular.

The first amendment is about giving permission for entry, which I fear slightly because there is always a danger of people being bamboozled on the doorstep or being threatened by “If you don’t let us in we know you are guilty” and letting them in out of fear. Amendment 37ZB is therefore particularly important. It states what we understand the position to be in common law and in other things, but why not restate it? These are the things that must be taken into account when powers of entry are being examined and there is no harm in restating something when people have clearly forgotten. People expect a warrant unless there is a very good reason why not. To my mind that is quite reasonable and I cannot see why it is a problem.

I was most intrigued by the third amendment because it reserves certain powers and I could not understand why the noble Baroness started off by saying that trading standards officers did not exist, then said what a good job they did and then said that she disapproved of this amendment as it reserved powers to these non-existent people. I could not understand why the amendment was not a good idea because it would keep the powers of these people—whoever they might be—as they were. Although the amendments have defects, we should pass them and the Government can tidy them up at Third Reading.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the noble Lord, Lord Selsdon, who raises a very important issue in relation to the use of these powers. I note what he has said and his excellent work leading to the very welcome safeguards that are already in the Bill but would certainly not be there without his work. However, I must tell him that I think he is being a little tough on the excellent people from the Trading Standards Institute. I am sure that, while one person was at tea at 4.30 pm, the majority of them were out doing their business at that time.

[Lord Selsdon]

They telephoned me back and were extraordinarily helpful. We are going to meet. I had not realised the depth of their experience and knowledge.

[Baroness Royall of Blaisdon]

Good.

It is important to recognise the rights of premises owners and occupiers when it comes to the use of these powers and to ensure that they are exercised, in the absence of the consent of the owner or a warrant, only when truly necessary. The noble Lord has introduced very important safeguards into his amendments. Last week, I was extremely anxious about the amendments that had been tabled because, like many other noble Lords, I had been contacted by the Trading Standards Institute, for whose work I have long-standing admiration, and was very worried about its concerns. The amendments which have been retabled by the noble Lord have assuaged many of my fears and the Trading Standards Institute clearly now feels comfortable with them.

The amendments leave a number of outstanding issues, the first being, as I believe the noble Lord himself said, as did the noble Baroness, that “trading standards officers” is not a recognised term. Therefore, the amendments would have to come back to the House at Third Reading because there would have to be some sort of tidying-up exercise.

I am also concerned about whether the amendments would hamper the legitimate use of these powers by local authority officers who are not currently provided with an exemption by the amendment, such as environmental health officers. I listened very carefully to the case made by the noble Baroness, Lady Eaton. Having said that, I believe that the noble Lord includes important safeguards in his amendment which specifically allow for the use of those powers when it can be demonstrated that the purpose of their use would be frustrated by having to seek permission from the premises owner or to apply for a warrant, which is a jolly important safeguard.

I am therefore in a bit of a difficult position here. I heard the discussion about the review. I think that the noble Lord, Lord Vinson, was right to say that the review mechanism must be strengthened. I wonder why the review is taking so long, and I would like to hear from the Minister. I will be interested to hear the Government’s response to these amendments and, specifically, whether the Minister believes that the amendments provide sufficient safeguards to enable, for example, environmental health officers to undertake their work. I have to say that I am inclined to support these amendments, especially as it is clear that they will have to come back to the House at Third Reading in order to be technically correct. That would give Members of the House another opportunity, if necessary, to bring forward another amendment in order to safeguard the powers of, for example, environmental health officers.

Protection of Freedoms Bill

Lord Selsdon Excerpts

Thursday 15th December 2011 Grand Committee

Moved by

[Lord Selsdon]

131: Before Clause 39, insert the following new Clause—
“List of powers of entry
The Secretary of State shall ensure that the list of powers of entry in Schedule (Acts and secondary legislation containing powers of entry) is kept up to date and published.”

[Lord Selsdon]

I shall also speak to Amendments 131A, 132 and 136. I shall try not to bore the Committee as this has been a fairly tedious subject for me.

I joined your Lordships’ House in 1963 as an independent unionist Peer, which is now a defunct breed and was absorbed by the Conservative Party. I was told always that I should be as independent as I could. One of my specialist subjects was the fear of someone being able to go into people’s property without permission or without a court order. Over a period of five years I introduced five Bills despite considerable opposition from everybody, but later, with the help of my noble friend Lord Marlesford, the noble and learned Lord, Lord Scott of Foscote, Liberty and a few other bodies, including a Home Office Bill team, we managed to get something through the House. I had thought that as it had got through the House and it produced a schedule of those Bills that gave power of entry, it would be a relatively simple matter for the new Conservative Government to adopt it. They tacked the issue on to the freedom Bill rather at the last moment.

The modern Conservative Party, in its manifesto—Modern Conservativism: Our Quality of Life Agenda—which it passed to me before the election, said:

“A Conservative Government will cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety. Labour plans to give bailiffs powers of forced entry into the home to collect civil debts will be revoked”.

I thought that I should go to see my noble friend Lord Henley with his new Bill team and it was an amazing repetition of what happens. I went to Room 5, which is just up the Corridor. The first time I went was to see the noble Lord, Lord West, with his officials. I sat in the same seat and they were very nice, smiled at me and said that it was not convenient to do anything about this at this time, as it was too complicated. I sat with my noble friend Lord Henley, with different officials, just a few days ago. I sat in the same seat and he said that the Government were not prepared to accept any amendments. It was an exact replica and I wondered why—was this because it was too complex or was there some other motive? I thought probably the motive was that they really did not want to be bothered with it. Frankly, the Protection of Freedoms Bill is an enormous great Bill in its own right. Why should they go back and bother on these issues?

However, these issues are important and with my first amendment you would have had a list in the Bill of the powers of entry. It took a very long time to get that list together—started mainly by Professor Richard Stone of Lincoln University, who produced the authoritative book on it. It was then added to, not by Ministers of whom I asked questions and questions because their answer was, “The information is not centrally available”—more or less they did not know. The Home Office, to give it its due, stepped in and together we managed to produce the schedule of more than 600 Acts with powers of entry that was published and put in the Bill. Amendment 131 says:

“The Secretary of State shall ensure that the list of powers of entry”,

in the schedule should be published and I thought it should be in the Bill.

The Minister said it was not a good idea. However, I thought it was a good idea that it should be published so I put that in here and I then tabled the full schedule. I had to snip out the ones I thought had gone—and this is a totally amateur activity but “amateur” means someone who loves his subject. I then thought if I produced this, it might help. The Minister said he did not want it in the Bill because every time one had to be amended it would need primary legislation. I said there was a way round it without doing too many Henry VII or Henry VIII powers or whatnot and my great supporting team in the Public Bill Office produced a very simple clause which is my other amendment—it says effectively you can amend by secondary legislation. Then I was told that they did not want to amend by secondary legislation either. They did not want to amend at all. I wondered what one could do so I introduced another amendment. I thought the Government themselves should publish a list and put it in the Bill—and I still believe that should be the case—not just leave it hidden away in some website that is extraordinarily difficult to access.

I then suggested to myself that maybe there was another way this could be done. I thought, “Let us go back to where we came in”. I asked every ministry what their powers of entry were. At Second Reading I told the noble Lord, Lord Bach—who was very kind and helpful—what his powers of entry were and I put them in the Library. However, a Back-Bencher is not allowed to put anything in the Library officially. Only Ministers can do that. I had prepared a 200-page document that takes in all the history of this. I am going to ask the Minister if he will put it in the Library. I lent it to the Home Office Bill team who read it and left no dirty fingerprints on it whatever, so it was obviously not very thoroughly read and I brought it back. In that is a complete schedule.

I thought that maybe we should return and say that as all these Acts, primary and secondary legislation, relate to ministries and as the ministries keep changing let us pass the responsibility back to the individual Minister to produce, regularly—I have said at the start of every parliamentary Session but it could be every week, every month or whenever—a schedule of all Acts and secondary legislation containing powers of entry for which his or her department has responsibility.

It is pretty difficult for the Home Office to put all these things together because things are happening often without its knowledge. It produced a really remarkable document available on its website that lists them all. However, householders and others ought to have the right to know if someone calls and says they have a right to come in under what right that is, hence the concept of a code of conduct, which I put in before. The Minister did not really want my code of conduct. All I was trying to do was to suggest things that should go into it.

My noble friend Lord Marlesford will mention that it was a long time ago but my great mentor when I arrived in the House of Lords was Lord Hailsham. He was the only one I met and he asked me, “Who are you and what are you doing here?” and actually gave me tea. One of his specialist subjects in those days was powers of entry. My noble friend will raise this later. It is built into me that I do not want to wear a pass or be forced to carry an identity card. I want to be who I am. Even when I went to have my biometric details done for the test identity card, it said, “Not known, not recognisable”. My fingerprints did not seem to work and I had a bit of fear.

I have introduced this amendment in the hope that the Minister will take some action. It would be nice if these Acts of Parliament were in the Bill. If that is not possible, maybe each of the departments could have an instruction to produce a schedule from time to time and provide a direct reference other than by e-mail. As a member of the Information Committee of your Lordships’ House, I can advise you that your Lordships are not terribly switched on. Many do not even have an e-mail address and probably only about 50 per cent could be determined to be electronically active.

Fortunately, I have here on my new trial iPad all 200 pages—I just pressed a button and was absolutely shattered. I recommend that all noble Lords should have such an opportunity. That is not corruption but just a simple statement. I ask the Minister to try to find a way. I am extremely grateful to the Labour Party. In Opposition, it accepted what I proposed, discussed it and was very constructive and sympathetic. We ended up with a piece of paper with a lot of things on it that made sense. The question is how you impart that information in the right way to the right people to provide them with protection. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I pay tribute to the noble Lord for his diligence and doggedness on this issue. I find it extremely useful to have a list of primary and secondary legislation and Acts which bear relation to powers of entry. Maybe it is because I am now freed of the shackles of power that I am rather attracted by the notion that a list should be published in a schedule so that people can clearly see it. My one difference with the noble Lord is on his Amendment 136, in which he suggests that the Secretary of State should have a power to amend the list by a negative resolution. While I trust Ministers and would not wish to cast any aspersions on them, some extremely important powers of entry and Acts of Parliament would be cited in the list. It would be proper for any Minister to have to come to the House and be accountable, so I would be in favour of an affirmative rather than negative resolution.

--- Later in debate ---

[Lord Henley]

My Lords, when I referred to the gateway that we talked about, I sought to say that what we are committed to do in the Home Office is to check any new powers as they come in from other departments to make sure that they can be justified before they are introduced. It is easy to introduce something without much further thought, but we are trying to create a form of approach that will allow for a greater degree of caution and care to be used before such powers are introduced.

[Lord Selsdon]

I am most grateful to the Minister, and maybe the time has come once again to offer the help of the private sector in solving the problem. My two extra amendments take into account the points he raised with me. The preparation of the list means not just the issuing of it but also its availability to people at the right time. I have arranged with Professor Richard Stone at the University of Lincoln, who is rewriting the powers of entry, search and seizure with the Oxford University Press, to co-operate fully, as we have before, with the Government. We might see whether we can arrange a powers-of-entry cloud. This would mean that it would be available on my iPad, on which even now I have the whole of the Home Office Bill along with the updates that the officials themselves have not yet had. I do not know why they use yellow on their website because it is not a good colour. If these things are readily available online and in the Library—

[Lord Henley]

Perhaps my noble friend will give way. He, like me, is wearing a yellow tie, and he is also wearing a yellow shirt. Perhaps it is a good coalition colour to be wearing on an occasion like this. No doubt the Home Office works in the same spirit.

[Lord Selsdon]

It was part of the coalition activities. This is an area that will not go away. What I am trying to say to the Minister and his team is that there are a lot of people out there who would be willing to help. There are methods of presentation and of access, but not least there is the interpretation. Although I will not read it out today, I refer noble Lords to Lord Hailsham—my noble friend Lord Marlesford may have mentioned that—because this issue was raised by Lord Hailsham 56 or more years ago. It is an important one. Of course I will not press the amendment now, but I will arrange to meet my noble friend and see what I can do to help him and his Bill team. I beg leave to withdraw the amendment.

Amendment 131 withdrawn.

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[Lord Henley]

I take the noble and learned Lord’s point. He has not actually got an amendment down on this at the moment so we have not been thinking about that precisely but certainly we would consider having a look at that if the noble and learned Lord wants to come back to it on Report. I can see that Clause 40(2)(d) is where he wants the “shall” to come in.

The very simple point I am making is that not all powers of entry can be treated the same. Some powers of entry relate to the investigation of criminal offences or to a breach of regulation, but others do not. I would argue that it would be counter-productive in this instance, and indeed might prove unworkable in the case of powers of entry derived from European legislation, to seek to overlay a blanket requirement along the lines proposed in these amendments.

That is not to say that these types of safeguard do not have a place, and that is why we support the wider use of warrants whenever powers of entry are exercised. We also support the principle of consent in most cases—although obviously there are cases where consent would not be appropriate—and the removal of a power to enter people’s homes unless it is fully justified and accompanied by a magistrate’s warrant. I am trying to indicate that we need to consider the most appropriate approach on a case by case basis, and I think that Clause 40 allows us to do just that. The list of possible safeguards set out in subsection (2) includes a large number set out in paragraphs (a) to (k). These include a requirement for judicial authorisation and a requirement to give notice of the exercise of a power of entry and so on. I could read through the entire list. We consider that a targeted approach appears to be the preferable course of action on this occasion. The safeguards that apply best in most cases are specific to the type of investigation or inspection required and to the legislation conferring particular powers of entry.

I do not know if my noble friend Lord Selsdon wants me to go on to deal with his amendment or whether he is going to speak to it.

[Lord Selsdon]

I should like to say a few words about it at this point.

[Lord Henley]

I shall therefore give way. I thought that it was part of this grouping. However, my noble friend has not yet spoken so I shall listen to him.

[Lord Selsdon]

I shall speak simply on the matter of the code of conduct. The noble and learned Lord, Lord Scott of Foscote, pointed out that my amendment had certain faults in it because it should have said “either/or” and not all at once. What one had done before in discussion was to determine which factors should go into the code of conduct. My noble friend the Minister has rightly said that he will produce a very reasonable one. However, a difficulty is that each of the different pieces of primary and secondary legislation requires different consideration. For example, in the first 12 Bills listed on the Home Office website, there are 36 powers of entry relating to animals. They need a different method of handling when you enter a property. I want just to point out that I am on the same side as the Minister with regard to codes of practice or codes of conduct, but the noble and learned Lord pointed out that I should have put in “either/or” instead of the whole lot. That was my own typographical error.

[Lord Henley]

I am grateful to my noble friend for that explanation. I could not accept his code of conduct, but he will see what we have set out in Clauses 47, 48, 49, 50, 51 and even down to Clause 53 which sets out a corresponding code in relation to Welsh devolved powers of entry. It might be that my noble friend wants to have further discussions about that. However, what we have set out in terms of being able to alter or replace the code should be sufficiently wide and able to deal with difficult matters such as a code of conduct in relation either to animals or to other matters. On glancing through my noble friend’s code, I thought that it was what might be described as over-prescriptive. It is better to leave it to the route that we are setting out in the Bill.

Protection of Freedoms Bill

Lord Selsdon Excerpts

Tuesday 13th December 2011 Grand Committee

[The Earl of Erroll]

My Lords, having listened to the noble Lord, Lord Rosser, I suddenly realised about the extension into the private sector, which I had not really worried about. Presumably, that is going to mean door-entry systems, systems where you might be watching a childminding camera over the internet from somewhere else and security things which were in private use. It suddenly occurred to me that we have to worry about how far this could extend. That sudden thought came to my mind.

[Lord Selsdon]

My Lords, I have asked more questions on CCTV cameras in your Lordships’ House than anybody, I think, and I have been confused. The figure of 4.2 million was introduced twice by Labour Ministers in the past; there was also a code of good practice. It was estimated that there were 400,000 cameras in the London area alone. Some of the other estimates which led to private television cameras said that there was one for every three office buildings. I therefore support in principle the proposal that we should have more information. By my own knowledge from throughout the continent of Europe, we are the only country that has no knowledge of how many CCTV cameras we have, or of the latest technology that comes with them.

I will give your Lordships only one example. French policemen now have wonderful helmets, partly British designed, which have two cameras in the front and two in the back. As the French do not charge you for having a licence for a car, they make quite a lot of money out of some speeding offences but that technology is quite remarkable. I find it strange that we have not yet embarked on any programme to determine how many cameras there are and who they might belong to.

[Lord Marlesford]

My Lords, I should first declare an interest as I have CCTV cameras around my house. My main point is that the emphasis has perhaps very much been on what is to some extent a sort of fear and constraint: “Let’s find out how much”. I can see that, absolutely. However, CCTV is actually one of the great advances in protection, liberty and freedom and in having a safer society. I would always caution against standing against it. I recollect very well that many years ago when Citizens’ Band radio first came out, the Home Office in those days was very opposed to it. It reckoned that radio communications were for the broadcasting authorities, the military, the emergency services and itself. For a long while, people were illegally using CB radios but eventually the Home Office came round to recognising that CB radios, and any other intercom system by wireless, was a perfectly legitimate method of life. It is now in the ultimate in the mobile phone.

I can see that information is always interesting to get, but sometimes a survey such as this can be very expensive. There could be a commercial interest; no doubt, companies who supply mobile phone networks and, indeed, the hardware for mobile phones do a great deal of market research in order to maximise their sales all over the world. However, one wants to be quite careful before one takes something which has become an absolutely standard method of life and starts to spend a lot of money—public money in particular—in making great inquiries into it. I am happy for the commercial people to spend their money.

The example of the police in France was fascinating, and I had not heard about that. I do not think that we must do anything which stands in the path of progress in using modern technology. CCTV is not a particularly modern technology but it is an absolutely everyday technology. All of that said, there must of course be constraints on abuse or misuse of a technology. That is all I would like to say.

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[Lord Henley]

I cannot at this stage remember precisely what the LGA’s response was. However, I can assure the noble Baroness—who, with her local government background, is presumably a distinguished former member of the LGA—that we will certainly want to listen to its views as we get that code of practice sorted out. The Secretary of State must prepare it, as set out in Clause 29. We want to make sure that it is appropriately, proportionately, transparently and effectively designed to ensure that the right approach is taken in dealing with these things and we get—dare I say it again—the balance exactly right. I believe that there is consensus that further regulation is necessary. However, there is also consensus that there should be no further delay in this matter.

I object to the amendment, although I am grateful to the noble Lord for tabling it because it is useful to discuss the code, because we want to move ahead with getting that code of practice right. We will consult not just the LGA on that but a great many other bodies. However, having the inquiry, as suggested by the noble Lord’s amendment, would not achieve much. It might be that other inquiries will take place later but, for the moment, we want to get the code right and that is exactly what we will do. I hope the noble Lord will feel able to withdraw his amendment.

[Lord Selsdon]

Maybe my noble friend could help me with something. I have asked previously how many cameras are registered. The answer was that all cameras should be registered with the Information Commissioner. I then asked how many cameras are registered with the Information Commissioner and the answer was none. Presumably my noble friend will be introducing a new form of commissioner who will register certain cameras. Could he perhaps explain the difference between the new system and what was meant to be the old system?

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[Lord Phillips of Sudbury]

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

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

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

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

[Lord Selsdon]

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

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

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

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

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

[Lord Henley]

My Lords, just to make sure that I get things right, I should make it clear that it is my understanding from the intervention from the Deputy Chairman of Committees that we are dealing with Amendments 115 and 120 to 128, but not with those in the name of my noble friend Lord Phillips, which start at Amendment 116, those being a separate group.