Protection of Freedoms Bill

Lord Selsdon Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Selsdon]

My Lords, I suppose that freedom and privacy are two of the most important things in my life. My interest in this matter goes back many years to the banking world, when we had the phrases “duty of care” to your customer and “know thy customer”. I found as time went by that nobody knew anybody: you did not know the gasman; you did not know the postman. Strangers started to appear on the doorstep. In the banking world, we were concerned particularly to protect our clients from all sorts of invasions. This started for me and my colleagues along the lines of, “We had better introduce a Bill”, so, way back in the 1970s, we drafted the protection of privacy Bill, because it was about privacy that we were concerned. Gradually, we found that there were more and more opportunities for government or outside bodies to enter people’s property without permission and do all sorts of strange things, whether or not it was the gasman. This led to my drafting, with considerable help, the Powers of Entry etc. Bill.

This was done initially with the help of a professor from Lincoln University, Richard Stone, who produced the authoritative book, The Law of Entry, Search and Seizure. I began by asking Ministers questions—I think there were well over 100, or maybe 200—as to what the powers of entry were. They did not know the answer, and the standard response was, “The information is not centrally available”. They did not say that the cost of getting it was too much. So I drew people’s attention to the book and put it in the Library, and certain Ministers began to reply. Then, rather to my surprise, the Labour Party and Government became interested and were extraordinarily helpful. Gordon Brown made an announcement at Downing Street that we must do something to control the abilities of people to enter people’s homes without their permission. The Bill, which, as I said, was called the Powers of Entry etc. Bill, lasted about three years. There were three editions, and the final one passed the House with the great help of the Labour Government in March last year.

I have learnt in this place that you never get a Private Member’s Bill through unless you find someone who picks it up in the Commons after winning a ballot. You have to drip-feed the right people in the right way, and watch the stalactites and stalagmites grow. It was therefore a great pleasure to me when we finally got this through with the help of the noble Lord, Lord West, despite the objections of his officials at the Home Office for quite a period of time. We had a Public Bill Committee, which people from all parts of the House served on, and I was lucky enough in the end to get the Home Office to join in. I would mention the name of the man in the Home Office—he was brilliant. Together, we found our starting point was 150, then 250, then 300 pieces of primary or secondary legislation. Then the Home Office, working often through the night, arrived at somewhere around 2,500. Of course they change.

However, who can go into whose house? We thought that it might be right to say that, first, they should knock on the door and say who they are, and then perhaps they should prove who they are. They should probably not do it in the middle of the night and they should probably not do it on a Sunday, they should wear good clothes, and they should possibly have something to say, such as, “I am here for this reason”. Your Lordships will have seen in the press from time to time many occasions when, because a postcode was wrong or the wrong button was pressed, someone beat down the door of someone else’s house, took something away or caused problems. What pleased me so much about this was that, gradually, people became interested. I knew the Government would not necessarily take it up, so I was so grateful that the Labour Government lost the election, because it gave me a chance to put a bit of pressure on the Conservative Government, one of whose wise men rang me in the middle of the night when I was abroad and said, “Your Bill is going to be adopted when we win the election”. I said that I would wait and see whether that happened or not.

Anyway, I did not hear much more. Then, suddenly, the Protection of Freedoms Bill emerged and the powers of entry were within it, bearing some resemblance to what I and my team had done. However, the government system had failed to recognise that we did not leave it by pushing a Bill for someone else to take up and do all the work on. We had communicated. I had written to every local authority in the land and asked for their views. I had written to every bishop and asked him to get in touch with the parish councils. We had written to every one of the bodies that had powers of entry asking for their advice and guidance, and I had put out a website that went right the way around different parts of the world. More than that, we had drafted a petition and were just looking for the 100,000 signatures in order to present a petition at the Box. This was all with the help of the Public Bill Office and the people in the House of Lords.

I am now extremely grateful as I stand opposite the noble Baroness, Lady Royall, and I thank her so much for the help of her Government and ask whether she will help me to persuade this Government to do things in the right way. They started off correctly, but I am glad they put the powers of entry section into another box, as it was pretty useless. It did not even list all the powers, because they change from day to day, but said they would introduce a code of conduct.

I wanted to know what that code of conduct did, because the Bill that we had already had said that you must not go into someone else’s property, office or place of work without permission or a court order. Now it is the court order that has not yet appeared, because it is relatively easy for anyone to obtain one at any time. The noble and learned Lord, Lord Scott of Foscote, was on our team. As your noble Lordships will know, he hunts quite regularly and said that he could even issue an order from the back of a horse if necessary. The issuing of orders is not a problem. We took out one particular area within the Bill that was quite important and that separated the powers of entry from everything else—a saving. It said:

“Nothing in this Act shall apply to the issue or execution of warrants in connection with indictable offences, including terrorist offences”.

So it was really about only commercial or other searches. I had some sympathy for the trading standards officers who took me back to the original Truck Acts, which go back over a long, long period. They had a point when they said that when people were mistrading or behaving badly they had to have the right to go in pretty quickly before the goods had gone.

I now ask the Government whether they would be kind enough to help me. They have listed the powers of entry in the Bill, but they have said they will produce a code of conduct. We do not really need a code of conduct, we need the permission in effect to require that powers are granted for the issue of rights of entry, that you should list them all, and, more than that, that you have the schedule that is necessary here.

The powers of entry all change regularly, and this is where we come to that strange thing, Henry VIII clauses, which I am not terrible well briefed on. The Public Bill Office asked me, perfectly simply, “What do you want to do?”. I said that I wanted to stop the Government doing the wrong things in the wrong way at the wrong time. This came to the fact that maybe the Government should not be allowed to introduce any new powers of entry without primary legislation but should be allowed to remove any unnecessary powers of entry on their own.

I sit down with a simple point; when we come to Committee, I will try to introduce that part of the Bill that we did together to save the Government time and money. If they are going to follow the proposal that they are laying down here, it will be two to three years before they manage to get everything sorted out. In the mean time, my great friend and colleague Professor Richard Stone has got the Oxford University Press to agree to issue a new edition of The Law of Entry, Search and Seizure, which will come out quickly. It would be a pity if that came out before the Government had got their act together. I am going to put pressure on my noble friend on the Front Bench when the Bill comes to Committee and ask for his support. In the mean time, I am very grateful to the party opposite for everything they did to help.

Identity Documents Bill

Lord Selsdon Excerpts

Monday 18th October 2010 Lords Chamber

[Lord Selsdon]

My Lords, I am honoured to follow my noble friend Lord Stoddart of Swindon. I apologise to him again, because the last time this issue was raised, I called him “Lord Swinton” by mistake. Along with my noble friend Lord Phillips of Sudbury, we have all spoken on identity cards enough to bore the pants off a wild boar.

This is a difficult subject for me because I have always had a crisis of identity. I do not oppose the Bill, but it is not past perfect, perfect or even future perfect. That is because the first thing you need for identity is a name, and as the prayer book says, “What are your name or names? Nomen or nomine”. For those of your Lordships who have heard me bang on about this before, the question is this: ask yourself what is your name, and then ask what is your full name, and then ask what is your legal name. Of course, as noble Lords know, you do not have a legal name because you have the right to call yourself what you like. Some of us have suffered from being put into your Lordships’ House at an early stage. I found that instead of being Malcolm Mitchell-Thomson, I became the right honourable Sir Malcolm McEacharn Mitchell-Thomson, Baronet of Polmood in the County of Peebles and Baron Selsdon in the County of Croydon.

In my travels over the years—and I have travelled much—this has led to me sometimes being registered by the first two words in my passport or birth certificate when I have tried to prove who I am. Those words may be “the right”. In the continent of Europe you take the surname or last name first and then the Christian name, so I have been Monsieur or Herr “right the”. As your Lordships know, “The” is a well-known Vietnamese Christian name. At the other end of the scale, when I have been “of Croydon”, I have been called Monsieur “Croydon of”, and “Of” is a Norwegian Christian name. I would like to be called “Malcolm Selsdon”, but this is denied to me.

If we are to have an identity card or passport, the first thing we need to do is determine the full name of the holder. In an attempt to prove myself wrong again, I asked the Whips Office if it would give me the Christian names of all Members of your Lordships’ House. I then searched through these names, only to find that many of your Lordships are called by a name that is not either one forename or another. So how do you prove who you are? And, having proven who you are, how do you use that information for your benefit?

The British passport has a reference number containing 24 figures and four letters—it is perfect—which is scanned in when you go to an airport. However, it is big, and if you try to carry it with you when you go swimming you find that you have got a problem. Over time, I have taken a copy of my passport. Is it illegal to take a copy of your passport? I am not sure that it is, but it is photo voltaic. It also has a photograph of me because, if I wish to identify myself to someone, I need to have a photograph. Almost everyone these days requires proof of identity.

I say to the noble Lord, Lord Maxton, that I do not carry a pass of the House of Lords because, when I came here, I was told that I should certainly know everyone who had come here before me, their name and their face, and that the best form of security is recognition. Then, in order to get to know the security people, I was given the numbers they had on their shoulders and I learned their names so that when I went by them very quickly everyone would recognise me.

My problem is that I lose passes regularly. On my bus pass I am called Lord McEacharn, which is one of my middle names, and on something else I am Monsieur Croydon of, but I would like to have my own name and my own photograph on every card that I have. For example, I would like to have them on my bank card so that no one can steal it. I would like that freedom and that right.

Having studied the European legislation on data protection, I went to each of the countries where I worked and asked, “Will you accept this miniature of my passport as proof of identity?”. I had had it put in plastic—but not in a shop; I did it at home so that I was not breaking the law—and it is the same size as almost any European identity card; it is also waterproof. I have a miniature as well, but I am probably breaking the law. That copy has saved me on many occasions when I have lost a passport. I admit that I have two passports because of the places I go to.

So, first, can the Government give a definition of what is a name? This is particularly important because if you do not start with a name you get into trouble. If you are Lord Hunt of Kings Heath and have the name Philip, the question then is whether there is one or two “ls” in Philip. If you have got a hyphen in the middle, which many of the machines cannot pick up, you get into trouble because there is a space which is filled in with a back slash, an underlining or something else. My wish, first and foremost, is to get a definition of the name. Everyone should then register their name and it should become a legal name. So, first, let us legalise names.

Occasionally you get into trouble when you arrive somewhere and find that your baggage has been stolen and you have nothing but what you stand up in. It happened to me in Rome. I said, “Please let me through. I have got to go to”—forgive me—“a Christian Democrat Party meeting”. I was asked “Do you have any proof of identity?”. I suddenly realised that I was wearing one of my father’s old suits—from the days when he could afford to have one made—and that it had written in it “Lord Selsdon”. So I took it off and gave it to the man. He went off and there was a lot of discussion. He then came back and said, “Your jacket has gone through. Can we now have the trousers?” The point that I am light-heartedly making is that I of course support getting rid of the previous Act, but I do not support the way in which the present Bill is structured. Please can somebody get round to explaining how one’s name is defined and may we in the United Kingdom end up with a right to a legal name?

[Viscount Slim]

My Lords, before the noble Lord sits down, perhaps I may say that I sympathise with him, as I am sure do all noble Lords. He is not as fortunate as me. My father and I always used to say that our name is quite the best of the four-letter words.

[Lord Brett]

My Lords, I am not sure that I can help either of the previous speakers, but I would give one word of advice to the noble Lord, Lord Selsdon. In seeking the identity of Members of the House, it might be more profitable if he were to ask for given names and not just Christian names.

As has already been accepted by our Front Bench, the manifesto commitments on this issue of the Conservative and Liberal Democrat parties give them the authority to seek repeal of the previous legislation. I am fascinated by the speed with which it has been dealt; it could be because, so far as I can see, it is about the only item that appears in both manifestos.

In the debate on the gracious Speech, the Minister said:

“This Government have a strap line: freedom, fairness and responsibility. These themes run through the Government’s programme”.—[Official Report, 27/5/10; col. 240.]

I should like to test the question raised by the noble Lords, Lord Phillips of Sudbury and Lord Stoddart; namely, is it reasonable, free and fair now to say to people that the ID cards which they have voluntarily acquired and which have been legally provided are now to be abolished without compensation in any form and without continuing to provide the freedom of travel across Europe that was part of the reason that they bought the card in the first place? If it were a major issue of expense, one might say that, in these straitened times, it could not be afforded.

The impact assessment looks at the number of options available. The one which I find most attractive is Option 5, the mandatory return of cards with return of fees. It states that this would be of particular advantage because:

“Under this option, current cardholders would be entitled to reclaim the £30 cost of the ID card by returning it to IPS. The benefits of this over Option 1 include … Reputational benefits for the government, in dealing with people who purchased a now-useless card in good faith”.

Are we saying that the Government’s reputation is not worth, at maximum, £400,000, which would be the cost if everybody sought a refund? The impact assessment points to reduced enforcement costs as compared with other options. It also states that,

“the administrative costs incurred in dealing with claims over and above those incurred in collecting the cards in any case will be negligible, but reductions in risk relating to outstanding cards will also be negligible”.

That adds up to a powerful case for consideration of amendments in Committee, particularly when one takes account of the fact that we are expending some £82 million on a referendum on AV and something like £50 million plus on a proposal, if it becomes law, to elect police commissioners.

So I argue that the Government’s position in respect of refunds is not an issue of freedom—it is denying freedom. The agreements were entered into voluntarily. It has been argued that it was not a contract; I am not sure that that was how people who bought the cards would have seen it. Is it reasonable and, most of all, is it responsible?

The noble Baroness, Lady Hamwee, quoted letters from a couple of people who were unhappy about the ID cards. Both of them talked about compulsion—if I recall them correctly—but the ID card was voluntary. I shall quote from a letter that I received from a couple in July—I am quite happy to provide the Minister with a copy. It states:

“I would like our comments to be taken into account by the committee regarding the use of this card as a TRAVEL DOCUMENT in Europe. We can no longer travel long distances this card is fantastic to use. Convenient to carry and most of all welcomed by customs officers wherever we have travelled. Now we have a travel document for Europe at a reasonable cost why should we have to pay over £70 for a worldwide passport when we cannot travel worldwide? All governments spout about value for money, but when it comes to the citizens of our own Country we are denied value for money ... The country may be in a financial mess, but we bought these cards on the understanding they lasted for 10 years. One of our laws (The Sale of Goods Act) states they need be fit for purpose and be suitable for the life span intended”.

That is a very reasonable case made for why the whole of that group of people should get at least a refund. A more prosaic description says:

“The Coalition Government states 100 days to abolition. At least Dick Turpin wore a mask when he stole money off his victims”.

So there is not a population seething on the streets and waving flags to congratulate the Government on removing ID cards; there are mixed opinions.

I disagree with the noble Lord, Lord Stoddart, speaking from the Cross Benches, because I do not believe that at any stage public support for voluntary ID cards was ever less than a majority of those being polled. That was the case through the piece—and compulsory ID cards got a larger support than that. However, that is not the issue. I see no point in rerunning the Second Reading debate on a previous piece of legislation. I suspect that our memories are all faulty on this occasion. When I spoke earlier about the contribution from the noble Lord, Lord Phillips of Sudbury, I was referring to what, as the noble Lord, Lord Stoddart, said, was the outcome of debate in this House and to what became the law, based on assurances given by the Government—I gave them from the Front Bench together with the noble Lord, Lord West—which limited very severely the kind of use to which the voluntary ID card could be put. Therefore, I rest my case on what I asked at the beginning: is it reasonable, free and fair for the Government now to refuse either to refund or to give credit against the cost of a full passport? It may be that the majority of people have full passports, but some have nothing more than the ID card and will now have to go out and buy a passport without even getting the credit for the £30 that they have already spent against the passport that they have to buy.

I hope that the views expressed by myself and from the Liberal Democrat Benches and Cross Benches will have support, because otherwise I think that this is a mean Bill, whatever the justification for the repeal in the first place.

[Lord Selsdon]

I apologise if the noble Lord misunderstood when I said “Christian”. I was referring to people who have been christened. He may want to have a debate later about the Baha’is and Patels and all the other people who have given names, which all appear in different orders. That was the point that I was trying to make.

--- Later in debate ---

[Baroness Neville-Jones]

The noble Countess is quite right. I do indeed have some information and apologise for not having given it. I think that one of her questions related to the UKBA. She asked about provisions within Sections 5 to 15 of the 2007 Act. We comply with the EU requirements and we have complied ahead of the 2012 deadline. I realise that the noble Countess raised one or two other aspects, but I am not in a position to answer them at the moment and so shall write to her.

[Lord Selsdon]

Before my noble friend sits down, can she help me? Would she be willing to share with the House her full name and her legal name?

[Baroness Neville-Jones]

I know a trick question when I see one. I shall certainly share my name as registered on my birth certificate. It is Lilian Pauline Neville-Jones.