Anti-social Behaviour, Crime and Policing Bill Debate
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Lord Taylor of Holbeach
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Anti-social Behaviour, Crime and Policing Bill
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Lord Rosser
I am not sure that the noble Earl and I should be having too lengthy a dialogue on this matter. I am not sure whether I got a very clear answer from him as to whether he accepted that what the Government are proposing may well put in jeopardy a very successful initiative, which over a period of years has had a very positive impact on the level of burglaries.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, with this amendment, the noble Lord, Lord Harris, has brought back the issue of the important role that design has to play in preventing crime and anti-social behaviour. It is important to stress that the Government recognise the importance of design in crime prevention. Nothing in the current proposals is designed to weaken that. I hope that the noble Baroness, Lady Howarth of Breckland, will accept that.
Before I respond in detail to the noble Lord’s amendment, I should like to emphasise that the housing standards review, which is the project under consultation at the moment and at the centre of the noble Lord’s concerns, was not initiated to cut standards irrespective of impact or to agree to a lowest common denominator approach. I cannot emphasise that enough. Its clear objective was to review a number of the voluntary standards—there are a number of voluntary standards—most frequently called up by local authorities. The aim was to identify opportunities for simplification, clarification and, if appropriate, those standards that are so important that they justify inclusion in a possible national standard or building regulations, which is a situation that may not always exist at present.
We are entirely supportive of the police continuing to advise local planning authorities on the layout of new development. We are all, I think, also in agreement that it is important to ensure that the police can continue to contribute their intelligence on crime to the development and implementation of standards. There will be no diminution of the role of the police in that respect. The new clause that the noble Lord proposes would place a mandatory duty on a body representing chief officers of police to publish guidelines on designing out crime that local planning authorities may then require builders to follow as a condition of granting planning permission.
As the noble Lord will be aware, the Government have spent considerable time tidying up the policing landscape to create a set of bodies with a clearly defined purpose. The Association of Chief Police Officers fulfilled an important role as the professional voice of the police service for many years, but as policing is changing, so too must ACPO. Many former functions of ACPO have transferred to the College of Policing and, in the light of the Association of Police and Crime Commissioners’ review of ACPO, there will be further consideration of the future delivery of some additional national functions. I am not persuaded that it would be right to pre-empt those considerations by designating a new or existing body, as the noble Lord is proposing today.
Many different expert groups have a role to play in the design, building and construction of the places where we live and work. Although I recognise that the noble Lord’s intention is to ensure that guidelines are drawn up in an open and transparent way in discussion with experts, I believe it should be left to the police and others to decide on the most appropriate groups to consult according to subject area. As a matter of good design, technical building standards and standards for the design and layout of the wider built environment are often considered together. That is indeed the approach taken by Secured by Design. However, in regulatory terms, the former are the domain of building regulations while the latter are matters for planning. Of course, the role of planning and building regulations needs to be understood in the broader context of crime overall, and on that matter I should like to offer some points of clarification.
When last we discussed these matters, the noble Lord set out a range of figures to exemplify the importance of security standards in new homes. While I have no wish to extend the debate unnecessarily as these figures have become a matter of public record, I think it is only right that we ensure that they are placed in context. The noble Lord, Lord Harris, suggested that if appropriate measures were installed some 700,000 burglaries could be prevented each year saving nearly £2 billion. According to the latest crime survey estimates, not only is this more than the total number of burglaries in England and Wales in 2012-13, it reflects burglaries in both old and new housing. The housing standards review sets out standards only for new development, not existing homes. Furthermore, the housing standards review does not propose stopping bodies such as Secured by Design bringing their own standards to the market for developers to use on a voluntary basis.
In relation to the question asked by my noble friend Lady Hamwee, local authorities are currently able to impose requirements on new development in relation to security, including adopting the principles of standards such as Secured by Design. Such standards may be delivered as a condition of planning permission, provided that the condition is necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in other respects—in other words, fitting the considerations that planning permission requires.
Lord Harris of Haringey
My Lords, I am grateful to the noble Lords, Lord Blair of Boughton and Lord Condon, and the noble Baroness, Lady Howarth, for their support for this amendment. It is also heartening to hear that neighbourhood watch schemes around the country believe that this approach is the right one. I am also aware that quite a number of senior local authority figures of all parties have expressed support for the principle.
I am also grateful to the noble Baroness, Lady Hamwee, for her support for the principles behind this. Quite properly, she said that Secured by Design guidelines include such issues as defensible space, lighting, sightlines and so on and she asked about the focus on locks. The reason for the focus on locks and such practical, physical measures in the course of this debate is that that is the area where the DCLG consultation, which includes the building regulations, is designed to weaken the autonomy of local authorities to decide what they think are the most appropriate standards in their areas. This is the reverse of being top-down; it is the Government who are imposing these changes top-down and preventing individual local authorities making their choices.
I have to say that I was puzzled by the Minister’s assurance that planning law does allow these things to be included in planning approvals. My understanding, as a local authority member for 26 years, is that planning approvals may include advice but only certain things can be included as mandatory as part of planning approvals. This would not be permitted under planning law to be one of those mandatory guidelines.
The noble Earl, Lord Lytton, seemed to think that this was some back-door way of giving statutory status to a bunch of senior police officers. I have to say that I do not think that is the purpose of it. The formulation,
“The Secretary of State shall designate a body representative of”,
is quite widely used in legislation to permit, without recognising a particular body, the use of a body which is broadly representative as being able to put forward a view. It is a standard approach. He also seemed concerned that the list of the organisations that should be consulted, given in proposed new subsection (3), was not sufficient. I would be happy to accept that it would be possible to amend it further to include that.
The Minister seems to be encouraging me to bring the amendment forward again in a slightly different form. If he is saying that the amendment would be acceptable if, instead of referring to,
“a body representative of chief officers of police”,
it said, “the College of Policing”, I am quite happy to bring this forward on another occasion. Is that what he is suggesting?
Lord Taylor of Holbeach
It is not what I am suggesting. I just pointed out to noble Lords what the noble Lord’s amendment said.
Lord Harris of Haringey
In that case, the points about the College of Policing were clearly rather academic.
The purpose of this amendment is to give local authorities the flexibility to set higher design standards, if that is what they want to do. The Minister has said that nothing the Government are doing is intended to weaken the security standards and that the housing standards review was not intended to bring about the lowest common denominator, but that is what it is doing, in practice. He talked about supporting the police in advising on a layout of a development, but this is not just about the layout of a development—it is about the security measures physically built into the development, which I do not believe can be part of a planning approval at present.
The Minister told us at length about the importance of tidying up the policing landscape, but that, frankly, is irrelevant. There will still be chief officers of police, unless there is some hidden agenda for the Government.
Baroness Hamwee (LD)
My Lords, we had the opportunity to consider the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013, which the Minister sent round after the previous debate and is now in force, as I understand it. Any of us could have prayed against it.
We need to understand as a House that we are not at the point in the development of this—“work” seems to be the wrong term—matter that one might think from looking at the amendment. That is not to say that I do not have sympathy with the amendment. One of the times when I was most shocked at work since becoming a Member of your Lordships’ House was on hearing recordings of the testimonies of women, and their families, who have been affected by activities under CHISRS. I remember the family of one woman saying, “We treated this man as our prospective son-in-law; we welcomed him into our family”. It was very moving.
That causes me to say that what matters more than anything—although I do not know how you deal with it other than by putting formal technical oversight in place—is a change in practice and culture. The police need to take that matter on board but you cannot write that into legislation in that way.
The 12-month period for approval before review is required seems on the long side and I look forward to the Minister explaining it to the House. As I say, we should have questioned some time ago—I am as much at fault as anyone—why 12 months was chosen, rather than six months or even three months.
Lord Taylor of Holbeach
My Lords, this has been a worthwhile debate, although we have discussed this matter before. As the noble Lords know, the statutory instrument has come into effect, so we are in a different regulatory regime from the one we were in when we discussed this in Committee. In no way do the Government endorse activities to which the attention of the House has been drawn in the speeches of noble Lords. I am grateful to the noble Baroness for tabling the amendment. I agree that covert techniques are sometimes necessary to protect the public from harm or to prevent or detect crime. I think all noble Lords will accept that. These techniques need, however, to be closely supervised and constantly reassessed to ensure that they are justified.
Undercover deployments are authorised under the Regulation of Investigatory Powers Act 2000. RIPA provides a strong set of safeguards. As I said in Committee, we have recently brought forward secondary legislation, further enhancing this oversight of undercover deployments by law enforcement agencies. The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 came into effect on 1 January 2014.
I was a little concerned that, in our debate last time, the noble Lord, Lord Rosser, might not have been aware of this order, so, following the debate in Committee, I wrote on 21 December 2013 to draw it to his attention and to that of the noble Baroness. As a negative instrument, there was the normal opportunity for the Opposition or any noble Lord to pray against the order, perhaps on the ground that its provisions fell short of what was needed. Unfortunately, however, it is a matter of record that no such step was taken. The order, which has now been in force for some three weeks, provides a number of additional safeguards to ensure that the technique is used only when it is just to do so. I will give some examples of what I mean.
First, law enforcement agencies must notify the Office of Surveillance Commissioners, all retired senior judges, of all undercover deployment by law enforcement officers. Secondly, an authorisation can be renewed beyond 12 months only with the prior approval of a surveillance commissioner, who, I remind your Lordships, is someone who has held senior judicial office. It may be that the original deployment is not authorised for 12 months. Thereafter, if it is to be renewed at 12 months, a surveillance commissioner will be required to pre-approve all renewals for long-term deployments every 12 months.
In addition, we have increased the rank of authorising officer. Deployments of undercover law enforcement officers now need to be authorised at assistant chief constable level or equivalent. Any deployments lasting longer than 12 months will be authorised by a chief constable or equivalent as well as by a surveillance commissioner. The seniority of those who are now required to authorise these deployments is an indication of how seriously the Government take proper oversight of undercover law enforcement activity. I hope I can reassure my noble friend Lady Hamwee that all authorisations are notified to the commissioners at the outset. They monitor the cases during their normal inspections. Each case is approved specifically after that 12-month interval. It reflects the existing legislation and implements the HMIC recommendation to increase oversight of long-term deployments. As I have said, deployments can be for shorter terms, but they still have to be notified to surveillance commissioners.
We believe that the new arrangements will create a regime that contains considerable safeguards while not hampering operational effectiveness. We should allow them to bed down and be given a chance to prove themselves. We will of course keep them under review. Given these recent changes, I do not believe that this amendment, well intentioned as it is, is required. I therefore invite the noble Baroness to withdraw it.
Baroness Smith of Basildon
My Lords, I am sure that the Minister did not think I would pass up this opportunity. This is an interesting amendment. I was quite surprised to hear the noble Lord, Lord Blair, say that the Minister was going to resist the amendment, because when I read it, especially after our previous debate, I assumed, possibly wrongly, that it reflected what the Minister had said in previous debates and therefore set out the position for clarity in the Bill. Clearly, nobody in your Lordships’ House has criticised in any way the possibility of a police officer from overseas, suitably qualified, becoming a chief constable or the Commissioner of the Metropolitan Police. That is not at issue.
What is at issue is that they should be subject to the same conditions and rules as any member of the UK police force. I am surprised if the Minister does not think that there should be an explanation or guarantee of some form of appropriate security vetting, in the same place as the Bill says that a police officer from an approved overseas police force can be appointed. The change is being made in the Bill; I would have thought, therefore, that any qualification to that change should also be made in the Bill.
I entirely agree with the comments of the noble Lord, Lord Condon, and I hope that the Minister will be able to give some reassurance on this, and will take it away and come back at Third Reading with something that is appropriate and addresses the concerns that have been expressed. I do not think that it is unreasonable. The noble and learned Lord, Lord Hope, made a very strong point about public confidence. It serves public confidence well to understand that if a police officer comes from overseas, particularly in the role of commissioner, which is a counterterrorism role unlike any other chief constable role in the entire country, they will be subject to the same kind and level of vetting as any police officer taking the job from within the UK.
I hope that there has been some misunderstanding or error in the report that the Minister intends to resist the amendment. He has his piece of paper there; I hope it does not say that. I hope he will want to think again and come back. I think that he will have got a sense from your Lordships’ House that there is widespread support for what seems to be a very moderate clarification, and I hope that he can accept it.
Lord Taylor of Holbeach
My Lords, this has been a useful debate. I see this as an area of principle. I somewhat regret that the noble Lord, Lord Blair, addressed the issue ad hominem; I think that that was a little unnecessary. The Government take this matter seriously—and take his amendment seriously, too. As I said when responding to similar concerns in Committee, I agree that it is essential that those who are appointed as police officers undergo vetting appropriate to the role they are undertaking. I reinforce that view today. I am grateful to the noble Lord for reflecting on that debate and, in constructing his new amendment, taking the arguments I presented into consideration.
However, while vetting is vital, I do not believe that primary legislation is the place to set out the level of vetting. It is not the place where the level of vetting should be determined. Nor do I see the case for singling out just one chief officer post—namely that of Metropolitan Police Commissioner. As I said in Committee, no Home Secretary—also an appointee of Her Majesty—would make an appointment to the post of Metropolitan Police Commissioner that would put national security at risk. Furthermore, naming,
“developed (or equivalent) security vetting”,
as the requisite standard in primary legislation could be a hostage to fortune. Were the name or criteria for this type of vetting to change, this requirement could become outdated.
However, I have listened very carefully to the arguments that the noble Lord put forward, and there may be some merit in setting out vetting requirements in regulations. It is right for the College of Policing, as the body that sets the standards for policing, to take the lead role in considering whether to propose such regulations. As noble Lords will recall, Clause 111 makes statutory provision for its formal role in the preparation or approval of regulations. I will undertake to draw this matter to the attention of the college.
The noble Lord also highlighted the possibility that in a few years’ time we could find that all the chief officer equivalent posts in the Metropolitan Police, and indeed in other forces, could be filled by persons who have previously never served as a police officer in the UK. I have to say that such a possibility is, at best, theoretical, and I think that the noble Lord would admit that. Under the existing law, it could already be the case that every officer from commander through to deputy commissioner could be a person with no previous policing experience in the UK. That was not the case when the noble Lord, Lord Blair, was commissioner and, in practice, I see no possibility whatever of that happening in future.
We simply do not need legislation to preclude such a possibility. It has never been a legal requirement for the Deputy Commissioner of the Metropolitan Police or for deputy or assistant chief constables in other forces in England and Wales to have been a constable in the UK or a British national. As I indicated, these are not really matters for primary legislation; they are matters that the College of Policing may wish to advise on as matters for regulations—or they are matters that can be stipulated when a particular appointment is advertised. We remain of the view that an amendment to the Police Act 1996 is not required and, accordingly, I cannot undertake to bring forward a Third Reading amendment.
It will be for the Home Secretary to make decisions on the eligibility of applicants for appointment as Commissioner or Deputy Commissioner of the Metropolitan Police, and for the commissioner and chief constables in every other force to decide in relation to other senior posts. It is right that the Home Secretary and police chiefs should be trusted to decide who is best qualified and most appropriate to fill those roles. I cannot undertake to bring forward a Third Reading amendment on this issue, as I said.
I hope that the noble Lord, Lord Blair, will accept that the issues he has raised are not new. They would have arisen whether or not Clause 128 was in this Bill. He is right to raise these matters, but questions about the appropriate vetting of senior officers and about the relevant previous experience of such officers on appointment should not be a matter for primary legislation. However, I will draw this debate to the attention of the College of Policing. It may be that the college will come forward with regulations in future. Accordingly, I invite the noble Lord to withdraw his amendment.
Lord Blair of Boughton
My Lords, I thank all those who have spoken in this debate. I hope that the Minister did not think that I was being ad hominem about him as I certainly was not. In the circumstances of the Minister deciding to bring this to the attention of the College of Policing and asking it to consider what level of vetting should be required for the post of commissioner—if that is what he is saying—I shall, in a moment, ask leave to withdraw the amendment. However, I suggest to the Minister that the idea that a person could be appointed to a senior police position who has never previously been a police officer is pretty difficult to contemplate. I was never suggesting that all 35 would be like that as I cannot imagine anybody doing that. However, just the possibility that somebody who has never previously been a police officer could be appointed deputy chief constable seems to be a pretty odd state of affairs. Perhaps the Minister and I could talk about that outside the Chamber just to see whether that is not also something about which we could ask him specifically to ask the College of Policing. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
I rise briefly, having supported the noble Lord, Lord Marlesford, when he raised this issue in Committee and at Second Reading. He is wise not to rely on the Private Member’s Bill route at present, since we have a number of Fridays when we are discussing just one Bill, which crowds out every other Bill that noble Lords wish to bring forward. I agree with the noble Lord, Lord Deben, about “Better not, Minister”, or “Better, Minister”. I think that the phrase in the “Yes Minister” series—which I heard myself as a Minister—was, “That’s very courageous, Minister”, which, from civil servants, is not praise. I hope that the Minister has not had to be too courageous in accepting the principle behind this amendment.
I want to raise a couple of thoughts, because this is a big issue. The cost to councils is enormous. I come from a generation that came home from school or from shopping with our hands stuffed full of any litter we had had during the day. Sadly, that is not always the case now. Sometimes the methods used are not entirely appropriate, although the problem has to be dealt with.
I have one concern. As I understand it, the Minister will bring forward an order-making power at Third Reading, but I take the comments from noble Lords opposite that we need assurance that the order will not be delayed and will be fairly swift. We all know how long orders can take. Given that they are unamendable—though they have to be consulted on—it should not take too long. If the Minister can give assurances or any guidelines on the timescale in which he expects to bring the order forward, that would be helpful. Otherwise, I am delighted with the news that the Minister accepts the principle of this amendment.
Lord Taylor of Holbeach
My Lords, I have sat listening to noble Lords’ expectations thinking, “No pressure, then”, so I hope that I do not disappoint noble Lords. I am grateful to my noble friend for bringing forward his amendment. All noble Lords share his concern about littering; indeed, as all who have spoken in this debate have said, it is anti-social, causes a nuisance, is an eyesore for the communities in which we live and can cause harm to the environment and, potentially, other road users. It is unacceptable behaviour and should be treated as such.
My noble friend describes his amendment as a simple measure to “fix” a problem. I have not heard the words quoted by my noble friend Lord Deben—“Better not, Minister”—in all my time, albeit brief, in ministerial office, although he of course had a longer time in office and perhaps had to deal with slightly more weighty matters than I have. When my colleagues who work with me on this Bill talk to me, they demand not “courage” or sensitivity to other considerations that they do not believe to be justified; I find them remarkably supportive and they have been very supportive on this measure.
Lord Crickhowell
In the light of what my noble friend said about the devolved Governments, will he undertake to draw the attention of those Administrations to what has been said in this debate and the action that the Government are now taking so that there is some hope that similar action will effectively be taken in the devolved countries?
Lord Taylor of Holbeach
I recognise the fact that my noble friend lives outside England, so he has an interest in making sure that those of us in this country do not all drive across the border—
Lord Taylor of Holbeach
It is even more pertinent to the issue he raises. I will, indeed, draw to the attention of the devolved authorities what we propose when Parliament has approved the Third Reading amendment that we are tabling.
I shall conclude by saying that I and my ministerial colleagues share my noble friend’s abhorrence of roadside litter and his deep distaste at the behaviour of those who carelessly discard things from their vehicle. We have already discussed at length the kind of problems that can arise if the law on this subject is difficult to interpret or enforce. I am sure that my noble friend agrees that we need to ensure that we get the legal detail right. I hope that my noble friend will withdraw his amendment and allow us to bring forward an alternative that will meet all our aspirations.
Lord Marlesford
My Lords, I am obviously extremely grateful to my noble friend for what he said. I am well aware that it involved the political elite of the country in coming to this conclusion, and I much appreciate the fact that my right honourable friend the Home Secretary is also in support and, indeed, my right honourable friend the Environment Secretary was involved. The answer is that it is wonderful that we are about to make a great step forward. As to where it applies, I will happily buy England only so as not to delay it and, indeed, perhaps it could become a minor or major issue on the future of Scotland. They can discuss what part they will play. In the light of what my noble friend so graciously and kindly said, I have pleasure in withdrawing my amendment.
Lord Taylor of Holbeach
My Lords, Schedule 7 to the Terrorism Act 2000 is an important part of the UK’s counterterrorism strategy. The amendments to that schedule in the Bill were made in line with our ongoing commitment to ensure that respect for individual freedoms is balanced against reducing the threat of terrorism to the public here and to British interests overseas. We understand, even from our recent debates, that there remain aspects where we could go further in reforming the operation of the powers in Schedule 7. Let me set out the basis for the Government’s amendments in this group and I will then respond to the amendments in the names of the noble Lord, Lord Pannick, and my noble friend Lord Avebury when winding up the debate.
Amendments 93F and 93G, which relate to England and Wales and to Scotland respectively, clarify how the right to consult a solicitor as soon as reasonably practicable, privately and at any time, may be exercised by a person detained under Schedule 7 to the 2000 Act. These amendments make clear that a detained person who exercises the right to consult a solicitor may not be questioned until they have consulted a solicitor or no longer wish to do so. This is an important clarification and will put beyond doubt that examining officers must not question a detained person who has requested to consult a solicitor.
In the distinct context of a person detained at a port, an airport or an international rail station, consultation with a solicitor will ordinarily be by telephone, video call, text message or e-mail. The amendments provide that an examining officer may question a detained person who wishes to consult a solicitor if the officer reasonably believes that postponing the questioning would be likely to prejudice determination of whether the detained person appears to be a person concerned with the commission, preparation or instigation of acts of terrorism. That is unlikely, other than in circumstances where a detained person insists on speaking with a particular solicitor who remains unavailable set against the statutory time limit for conducting the examination.
The amendments also clarify that a detained person is entitled to consult a solicitor in person. This is an entitlement, not an absolute right. Where a person is detained at a port, an airport or an international rail station there may not be suitable facilities available for a personal consultation. These places are not police stations. If a detained person wishes to consult a solicitor in person, the examining officer will have to have regard to the facilities available for a private consultation and the time it will take for a solicitor to arrive at the port and to access the secure area where the person is detained. Where escort officers are available, and without detracting from the policing of the port, the examining officer may decide to transfer the detained person to a police station to facilitate a consultation in person, although that will extend the duration of the person’s detention.
Similar provision is made to allow an examining officer to question a detained person who asks to consult a solicitor in person. This might occur where the detained person insists on speaking in person with a particular solicitor and the time it would take for the solicitor to arrive at the port or the police station would consume a substantial portion of the limited time available for the examination. In that instance the officer may require the consultation to take place by telephone.
Baroness Smith of Basildon
My Lords, we have two reasons. First if the noble reads my comments in Committee, he will see that we gave further information on that. Secondly, we take the view as outlined by David Anderson in his report, and we think that was a reasonable position to take.
Lord Taylor of Holbeach
My Lords, the noble Lord, Lord Pannick, my noble friend Lord Lester, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Kennedy, have all made very valuable speeches on this issue, addressing the fundamental principle of Schedule 7 to the Terrorism Act 2000 through their amendments: when a person may be detained and when their personal electronic devices may be examined.
I preface my remarks by noting that we continue to await the judgment of the High Court in the judicial review proceedings brought by Mr David Miranda, following his examination under Schedule 7 in August last year. Although the independent reviewer of terrorism legislation, David Anderson QC, who has been referred to several times in the debate, has made some recommendations in relation to Schedule 7, we will not have the benefit of his report on the detention of Mr Miranda and any further recommendations he may make until after the judgment is handed down. Consequently, the debate on Schedule 7 will continue beyond our proceedings today and beyond this Bill. I am certain that we will return to these matters in detail in the future. I am grateful to the noble Baroness, Lady Smith, for agreeing to this approach and I commit to keeping her informed of the Government’s approach to the issue.
Let me address the amendments before the House. I begin with Amendment 93B, which provides that a person “may not be detained” for examination,
“unless the examining officer has reasonable grounds to suspect”,
that the person is concerned with,
“the commission, preparation or instigation of acts of terrorism”.
The powers in Schedule 7 to the 2000 Act are for the purpose of determining whether a person appears to be someone who is or has been concerned with the commission, preparation or instigation of acts of terrorism. This is an examination of whether they appear to be. As I explained in Committee, examinations are not simply about the police talking to people they know, or already suspect, are involved in terrorism. They are about talking to people travelling to and from places where terrorist activity is taking place or emerging, to determine whether those individuals appear to be involved in terrorism—whether that is because they are or have been involved, will become involved or are at risk, either knowingly or unknowingly, of becoming involved.
The Government maintain the view that introducing a reasonable suspicion test for the exercise of powers under Schedule 7, both to detain individuals and to search electronic devices, would undermine the capability of the police to determine whether individuals passing through ports, airports and international rail stations appear to be involved in terrorism. That view is shared, as some noble Lords have commented, by the independent reviewer of terrorism legislation, who explained to the Home Affairs Select Committee:
“My exposure at a variety of ports to the operational constraints under which ports officers operate inclines me, on balance, towards rejecting the reasonable suspicion standard as a condition for detention”.
Mr Anderson highlights:
“Terrorists pose risks on a different scale to most other criminals: they have shown themselves capable of causing death and destruction on a massive scale”.
He adds:
“Active terrorists are not numerous, and not easily identified as such”,
and that a port environment suspicion may be,
“harder to substantiate objectively in the absence of specific intelligence”.
Those are important words, setting the background to the Government’s consideration of these matters.
I note that the Joint Committee on Human Rights accepts that, “the concerns which underpin” the independent reviewer’s,
“rejection of a reasonable suspicion standard are entirely justifiable concerns”.
For his part, the independent reviewer has recommended that detention be permitted only, and continue only, when an officer is satisfied that there are grounds for suspecting that the person appears to be concerned with terrorism. In Mr Anderson’s view, this represents,
“the maximum safeguards consistent with the continued productive operation of these vital powers”.
There have been two or three references to the discriminatory effect of these powers on ethnicity. Perhaps I should tackle this one. As the independent reviewer of terrorism legislation said, if the powers are operated properly, the ethnic breakdown of those examined will correspond not with the ethnic breakdown of the general population or the travelling population, but with the ethnic breakdown of those involved with terrorism. I believe we have to accept that.
The Government welcome the debate to find an appropriate threshold for the exercise of powers to detain individuals, and to make and retain a copy of electronic data under Schedule 7. However, in the specific context of port and border controls to determine whether individuals appear to be concerned with terrorism, reasonable grounds for suspicion is not an appropriate threshold. Ensuring an appropriate threshold that is clear in its meaning and provides an effective safeguard in its distinct context is a matter the Government continue to reconsider. We shall reflect further on the recommendation that the independent reviewer has made. However I am not persuaded that it would be right to introduce a test of reasonable suspicion, as Amendment 93B seeks to do.
The effect of Amendments 93A, 93C and 93D would be to restrict the duty of a person being questioned under Schedule 7 to disclose anything in relation to data stored on a personal electronic device unless they are detained. They also restrict the power of an examining officer to search things in relation to data stored on personal electronic devices unless the person being questioned is detained. I have tried to reassure my noble friend Lord Avebury that the power to search for and examine property, including personal electronic devices, is an essential part of the Schedule 7 powers. The independent reviewer observed—I make no apology for quoting him again—that,
“the Schedule 7 evidence which has assisted in the conviction of terrorists … consists of physical possessions or the contents of mobile phones, laptops and pen drives”.
These amendments are intended to complement Amendment 93B and to require reasonable grounds for suspicion to delay a person and consequently to examine their personal electronic devices. I have set out the Government’s position on the reasonable suspicion threshold.
The independent reviewer has recommended that the power under new paragraph 11A to Schedule 7—to make and retain copies of data from personal electronic devices—be exercised only if a senior officer is satisfied that there are grounds for suspecting that the person is concerned with terrorism. As with the threshold for detention, the Government are considering additional safeguards for examination of personal electronic data. We shall reflect further on this, both on the independent reviewer’s recommendation and alternative enhanced safeguards—for example, to provide for a review officer to approve any decision to examine data.
“( ) In paragraph 1(5) (definition of examining officer) for “paragraph” there is substituted “Schedule”.
( ) In paragraph 2(2)(d), the words “(within the meaning of that Schedule)” are omitted.”
Lord Taylor of Holbeach
My Lords, exceptionally, with the leave of the House, it might help if I speak at this early stage in the proceedings. I will explain the background to some of the discussions and reinforce the words of my noble friend Lord Deben in proposing his amendments. I will also set out the Government’s approach to the matter.
Following the debate in Committee, I met my noble friend Lord Deben, the Metropolitan Police, Westminster City Council, the Royal Parks and the receiver general of Westminster Abbey to discuss how we might more effectively address noise issues in the vicinity of the Palace of Westminster. The meeting confirmed the view I expressed in Committee, when we debated my noble friend’s amendments the first time, that there are already sufficient powers, including within existing Westminster City Council and Royal Parks byelaws, for the police, Westminster Council and the Royal Parks to deal with noise issues around the Palace of Westminster. From the Government’s perspective, the issue is not so much an absence powers, but the effective enforcement of the powers that are currently available.
It is true that there are some differences between the provisions that apply to Parliament Square under the Police Reform and Social Responsibility Act 2011, and those that apply to the area we are talking about here. For example, unlike the provisions of the 2011 Act, there is currently no pre-authorisation requirement for the use of amplified noise equipment in areas other than those covered by the Royal Parks Regulation. In addition, the offence under the 2011 Act attracts a higher maximum penalty of a £5,000 fine, compared with the Westminster City Council byelaws where the maximum fine is £500 and the Royal Parks byelaws where it is £200 or £1,000 depending on the offence. Your Lordships may take the view that a single set of harmonised controls in the vicinity of the Palace of Westminster might assist the enforcement agencies to deal with noise disruptions more effectively. However, the need for effective enforcement would remain.
Home Office officials and I would like to pay tribute to the public order team working on this issue. Home Office officials have worked with the Metropolitan Police, Westminster City Council and the Royal Parks to develop a robust enforcement plan for the current legislation. A joint protocol has been developed to deal with noise-related nuisance in the vicinity of Parliament. The key features of this protocol are that it sets out a clear process for dealing with noise issues around the Palace of Westminster; provides a single, adequately resourced contact number for complaints, which will be followed up; sets out a process for the police and Westminster City Council to liaise with protest organisers in advance and inform them of the legal position as regards the use of amplified noise equipment and their responsibilities; and sets out an agreed process for the police and Westminster City Council to work together to deal with noise issues arising from planned potential disruptive demonstrations. The enforcement agencies have also produced leaflets to ensure that people are aware of the legal position and their responsibility to minimise noise to allow others to carry on their normal business without serious disruption.
Earlier today, I met Deputy Assistant Commissioner de Brunner and Commander Dave Martin from the Metropolitan Police. They have assured me that the Palace of Westminster police will provide active support to Members of the House in dealing with noise issues. They have also assured me that the joint agency enforcement plan should effectively deal with noise issues in the vicinity of the House. We have agreed to review the situation in two months’ time to evaluate how the new enforcement plan is working.
As I have indicated, whatever the legislation in place, the key is effective enforcement. Noble Lords may consider that that objective would be better served by the adoption of these amendments. As for the Government, we have concluded that this is properly a matter for the House to determine and as such, if it came to a vote the Government will neither support nor oppose the amendments. My noble friend Lord Deben has made his case and no doubt others will want to contribute to this debate but, for once, I will not seek to be persuading noble Lords one way or the other.
The Lord Bishop of Ripon and Leeds
My Lords, I am very grateful to the noble Lord, Lord Deben, for the way in which he introduced this debate and to the Minister for those comments and his response. My colleague the right reverend Prelate the Bishop of Newcastle has added his name to this amendment, thereby expressing the concern of these Benches, in particular with regard to the work and worship at Westminster Abbey and St Margaret’s parish church. I am sorry that the right reverend Prelate the Bishop of Newcastle is unable to be with us today. However, it is a particular delight to welcome the very reverend Dean of Westminster, as he exercises his constitutional right to sit on the steps of the Throne of this House.
The Abbey has suffered, as the noble Lord, Lord Deben, was saying, as a result of what is often quite unintentional disturbance of its worship, and its role as a place of prayer and the worship of God. It is important to affirm absolutely both the right of protest, with the human rights which are involved in being able to protest, and, at the same time, the right and duty of the Abbey to maintain its pattern of prayer to God, particularly in view of the way in which it stands for the spiritual nature and concerns of this nation, and of our monarch and the Royal Family. Our daily prayers here with your Lordships stress particularly the needs of this realm and of the monarch. Westminster Abbey is a unique testimony to prayer for those needs, and there is a need at this point to ensure that the Abbey is able to fulfil that particular task which it has in the life of both the church and the nation. I support the amendment and am grateful to the Minister for his generous words about it.
Lord Rosser
The Minister has reminded us that when a very similar amendment was considered in Committee he, as the Minister, said that the issue was how the existing by-laws were enforced rather than that the existing powers were inadequate. It was in that context that he proposed holding the meeting to which he referred, and which has now been held. It would be of some interest if the Minister were in a position to tell us, in the light of that meeting, why on the face of it Westminster City Council and the police were not able to enforce the powers that he said were already there and were adequate to deal with the situation that we are addressing.
Presumably, Westminster City Council must have had something to say on that, as did the police, since they were present at the meeting which the Minister held. He said in Committee that he needed to satisfy himself that the existing provisions were not being enforced by the council and the police, so it would be helpful to know what those two bodies had to say when they were asked why the existing provisions were not being enforced.
I appreciate that the Minister has said that there are different penalties. He referred to penalties of £5,000 against the £500, I think, under the powers for Westminster City Council, and to differences over no pre-notification for noise. That does not fully explain why the existing by-laws were apparently not being enforced. It would be helpful if the Minister could comment on that.
Since the Minister said that it is his intention to leave it to the House, I would make just one other point. The Minister said in Committee—I use his own words—that we need to be,
“very careful about taking any action that may impact disproportionately on people’s right to protest and their freedom of speech”.—[Official Report, 25/11/13; col. 1215.]
How is the Minister satisfied that we are being careful about not taking any such action, since I assume that that matter will have been discussed at the meeting which was held and to which he referred?
Lord Taylor of Holbeach
I thank the noble Lord, Lord Rosser, for his general support for the steps that we have taken to try to resolve this issue. As I said, it is a matter for the House. The interests of those demonstrating are, I believe, best served by the facility of pre-booking a demonstration based on availability, which this protocol will provide for. It is not essential and there is no attempt to say that this will be the only way in which people can demonstrate. There is no imposition on people demonstrating, other than that they obey the requirements of the by-laws in respect of the noise made through amplified sound. This provision is made explicit by my noble friend Lord Deben’s amendment. Throughout, the right to demonstrate and to assemble has been seen as a key feature of what we consider to be proper here at this end of Parliament, as it is in respect of Parliament Square.
The noble Lord, Lord Rosser, also asked why the enforcement of noise by-laws has not been effective. The one thing which came out of our first, extremely productive, general meeting with everybody present was that people were in effect operating in their own little silos. If I explain that responsibility for the George V statue and the paved area in front of it lies with Westminster City Council while responsibility for the green part beyond it lies with the Royal Parks, your Lordships might understand that co-ordinating action was also difficult.
It was quite clear, too, that the police did not realise that one of the most frustrating elements was that those police serving the Palace’s interests were not engaged in any enforcement of noise requirements in respect of the area that we are talking about. The police recognised that while they had had a strong focus on provisions in Parliament Square, this area had not been considered by them to be an important priority.
The noble Lord, Lord Deben, was able through tabling his amendment at Committee to bring this to the attention not only of this House but also of the police and other authorities. As a result of that, the protocol, which I am certainly reassured will be an effective mechanism, provides an opportunity for safeguarding democratic rights and, at the same time, ensuring that enforcement can in fact occur. So I hope the noble Lord is satisfied.
Lord Taylor of Holbeach
My Lords, I join the noble Baroness, Lady Henig, in her tributes to the security industry and to the Security Industry Authority. As the noble Baroness, Lady Smith, said, the noble Baroness, Lady Henig, brings expertise of this industry, but she also brings enthusiasm for its development, and I pay tribute to her for that.
As I said when we debated this issue in Committee, the Government are committed to reforming how the private security industry is regulated. In the future, the Security Industry Authority will regulate businesses undertaking prescribed activities before they are able to work in the security sector. This is an important measure as it will provide the SIA with a more efficient and effective means for regulating the security sector, improving standards and, most importantly, providing better tools for combating organised and serious criminal behaviour at corporate level.
The Government’s proposals have received strong industry support. Indeed, they have been supported by the noble Baronesses, Lady Henig and Lady Smith, this evening. While significant parts of the reforms can be delivered through secondary legislation, other aspects require primary legislation. The secondary legislation will be introduced as soon as possible, and the remaining proposals will be further refined once that work has been completed.
While I agree with the noble Baroness’s desire to see reform in this area, I do not believe that the amendment she has proposed for debate this evening takes the right approach. The scope of this proposed business regulation would be significantly narrower than either of the current provisions which would be removed by her amendment. This would reduce protection of the public by preventing the regulation of security provided in the private sector and would also remove the potential to extend to businesses providing their own in-house security eligibility for membership of the successful approved contractor scheme, which has around 760 member businesses.
The new business regulation regime that we are developing is designed around the use of Section 17 of the Private Security Industry Act 2001, which was amended by Section 43 of the Policing and Crime Act 2010. Amendment 94 would remove Section 43 of the 2010 Act and, in so doing, prevent the introduction of business regulation as currently envisaged. It is not our intention to undo the work that has been done to date, including during the noble Baroness’s tenure as chair of the SIA, and therefore we intend to retain the ability to establish a mandatory business approval scheme under Section 17.
It is not desirable to have a narrower scheme focused only on those private security firms delivering under contract to the public sector, because the private sector clients of such companies have just as much need for the protection which the Government’s proposals would afford. In addition, the existing individual licensing regime does not exclude the private sector, and it is our intention to reduce burdens and costs on those individuals through the introduction of business regulation across the industry.
The amendment would also insert a new Section 22A into the Private Security Industry Act. As the noble Baroness has explained, the intention is to enable the sharing of information for any purpose connected with the Act. While I agree with the intention of enabling information sharing, this must be considered as part of the overall reforms we are taking forward to ensure any provisions achieve this intention. So while I have some sympathy with this element of the amendment, I do not believe that this is the right way to go about it.
In conclusion, while I fully share the noble Baroness’s desire to make progress with the reforms to the security industry regulatory regime, I hope that, on reflection, she will agree that her scheme is not the most appropriate way forward—it is only a partial scheme—and that, accordingly, she will be prepared to withdraw her amendment.
Baroness Henig
My Lords, I have listened carefully to what the Minister has said. The first point I want to make is that, clearly, the Minister and those of us who are arguing for this are not divided on the end. We share the same goals; we are divided on the means to achieve those goals. The thing that has worried me particularly is the speed, or rather the lack of speed, with which the Government are moving forward on this. We have waited since 2010; we are now into 2014. This was all supposed to have been completed, I remind the Minister, by the end of 2013. I remember that he gave a pledge that it would all be completed by the end of 2013. We are now in January 2014 and the Minister is still using phrases such as, “as soon as possible”, “once completed” and “we aim to do this”. He has to acknowledge that the speed has been somewhat less than he would have liked. We know where the problems lie but it is this lack of speed that motivated me to put the focus on moving with urgency. What is actually happening is that, because of the slowness and what appears to be lack of action by the Government, we are losing the support of the industry.
The Minister will be aware that industry leaders are becoming increasingly frustrated by the lack of progress. Their concern is that if this is introduced through secondary legislation the situation could even be worse for companies than it is at present, because of the difficulty of enforcement under secondary legislation. I am concerned not to lose the support of the industry. It is so unusual to have nearly all the leaders of a big industry such as the private security industry united in wanting business licensing of companies that I do not want to lose that momentum. That is one reason I have brought forward a series of amendments to try to focus attention on this issue, and to explain why the industry is so concerned about it and why we need business licensing. However, I have listened to what the Minister has said and in the light of that, all we can do is wait. If he is not prepared to bring something back at the next stage, all I can do is hope that the primary legislation to which he referred will be with us sooner rather than later. On that note. I beg leave to withdraw my amendment.
Lord Taylor of Holbeach
My Lords, I confirm that the process is a written one—the noble Baroness asked that specific question.
Perhaps it is best if I start with the government amendments in this group, which would insert two new clauses into the Bill. First, Amendment 94DG implements an optional provision in the Fourth Additional Protocol to the European Convention on Extradition—the ECE—which the Government intend to ratify shortly. The ECE governs extradition between the UK and members of the Council of Europe—other than EU member states—plus Israel, South Africa and the Republic of Korea. This provision concerns the issue of speciality, which is the bar on a person being proceeded against for offences committed prior to extradition other than those listed in the extradition request.
Among other things, the Fourth Additional Protocol provides an optional mechanism whereby states can restrict the personal freedom of a person while a request to waive the rule of speciality is being considered by the state that originally extradited the person. This is not something that is currently catered for in Sections 150 and 151A of the Extradition Act 2003, which deal with the speciality rule in these cases. Accordingly, Amendment 94DG makes the appropriate changes to the 2003 Act. A person may only be detained under this new provision where both states have made the relevant declaration under the ECE and that declaration is still in force, and certain specified conditions, as set out in the new clause, are met.
Perhaps I may elaborate on that point. Those conditions are as follows. First, the Home Secretary requests the state that extradited the person to waive the speciality rule. Such requests are predicated on the prosecuting authorities being satisfied that there is a case to answer and that prosecution for other offences would be in the public interest. Secondly, the requested state must be notified by the Secretary of State that she would wish the person to be detained while they consider the request to waive specialty. Thirdly, the requested state must explicitly acknowledge the notification. If the requested state objects to the detention request then that person may not be detained; or if detained, must be released. Finally, and assuming these criteria are met, any application to detain the person will be made by the prosecuting authorities to the courts in line with general criminal law procedures. The new provision allows for detention in these circumstances for a maximum period of 90 days.
We believe there will be only rare cases which fall into this category. However, in those rare cases, the ability of the prosecuting authorities to apply for the person to be remanded in custody could be crucial to safeguarding the public and effecting a successful prosecution.
Amendment 94DH replaces Section 142(2A) of the 2003 Act. Section 142 deals with the issue of European arrest warrants in the UK; that is, in cases where the UK is requesting the extradition of a person from another member state. In the case of people who have already been convicted of an offence and whose extradition is requested in order to be sentenced or to serve a sentence, one of the conditions for the issue of an EAW by a UK judge is that the person is “unlawfully at large”. In a recent case a judge refused to issue an EAW in respect of a person who was in prison in another member state on the basis that the person could not be said to be “unlawfully at large”. Following that, we have decided to amend the 2003 Act to make clear that it is no barrier to the issue of an EAW that the person is in prison in the requested state. Amendment 94DH will achieve that.
I turn to the amendments tabled by my noble friend Lord Hodgson of Astley Abbotts. Let me preface my comments on the detail of his amendments by reiterating that we welcome the constructive approach he has taken to the extradition provisions in the Bill, and I am pleased to say that there is a great deal of common ground between us. As my noble friend explained, Amendments 94DA to 94DF would remove the appeal filter introduced by Clause 148.
A key finding of Sir Scott Baker’s review of our extradition arrangements was that the success rate of appeals was extremely low—less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals which delay hearings for all appellants. The purpose of the appeal filter is to address this problem by making appeals subject to permission from the High Court. I understand the points that my noble friend makes, but I must stress again, as I did in Committee, that these provisions will not prevent anyone applying for permission to appeal. Once an application has been made, the High Court will decide which cases should proceed to a hearing. Each application will be considered by a High Court judge.
Finally, I wish to make two further comments with regard to two of the other extradition clauses in the Bill. The first relates to Clause 144. That clause inserts a new Section 12A into the 2003 Act which provides a bar to extradition in EAW cases—cases where the issuing state has not taken a decision to charge and a decision to try the person. I want to make clear that the purpose of and intention behind this clause is to ensure that the case is sufficiently well advanced in the issuing country. We want to ensure that ordinary mutual legal assistance arrangements are used fully and properly. It is not our intention that a parochial approach to this clause should be taken. As the Court of Appeal has said, the Extradition Act 2003 should be interpreted in a cosmopolitan sense and be mindful of the stages of criminal procedure in other member states which do not use the common law. It is important that there is a clear intention to bring the case to trial. An EAW must, after all, be issued only for the purposes of conducting a criminal prosecution, as Article 1 of the framework decision makes very clear. We want an EAW to be used only for its proper purpose.
Comments have been made about the timescale for appeals. Clause 148 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period if the person did everything reasonably possible to ensure that the notice was given as soon as it could be. That is an important provision. It is also important to note that the seven and 14-day period relates to the notification of the intention to seek leave to appeal. I appreciate the concern that this is an insufficient period. However, it is also important to be clear that the onus should be on the person to ensure that as much as possible of the detail of why they believe they should not be extradited should be before the court as soon as possible. This would surely improve their chances of having the case discharged at an early stage by the district judge.
I would also like to clarify what the Minister for Policing, Criminal Justice and Victims said in the Commons Committee on 16 July last year in relation to dual criminality and Clause 152. He spoke about how this provision would work in practice in relation to an example about the offence of Holocaust denial. I want to ensure that there is absolute clarity on this point. Where an EAW was received for Holocaust denial allegedly committed in the UK, extradition would be barred for that conduct because it is not an offence here. However, extradition would be granted for such conduct committed in the issuing state, provided that the conduct is punishable in the issuing state with imprisonment or another form of detention for a term of three years, or a greater punishment, and of course that none of the bars in the Act apply so as to prevent extradition.
The noble Baroness asked a number of questions and I hope that I have answered some of them. Perhaps I may say particularly that the changes we are making will give people greater protections and improve the overall operation of the EAW, but that they will not impact on the number of unmeritorious appeals. It will be a matter for the courts how they operate the filter and decide whether to grant or refuse admission. On the impact of the NCA filter—proportionality—while the filter will leave the number of low-level cases that the courts will have to consider, we cannot say how it will impact on the number of cases that the court will consider. This will be dependent on the number of requests made by a state. I hope that I have been able to persuade my noble friend that our approach on extradition appeals is the right one and he should not press his amendments. As for the government amendments, I commend them to the House.
“Extradition to the United Kingdom to be sentenced or to serve a sentence
In section 142 of the Extradition Act 2003 (issue of Part 3 warrant), for subsection (2A) there is substituted—“(2A) The condition is that—
(a) the person has been convicted of an extradition offence by a court in the United Kingdom,(b) his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence, and(c) either a domestic warrant has been issued in respect of the person or the person may be arrested without a warrant.””