Police, Crime, Sentencing and Courts Bill

Baroness Bennett of Manor Castle Excerpts

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I put my name to Amendment 106A, which the noble Lord, Lord Rosser, has just introduced thoroughly and persuasively. Although I have sat as a part-time judge in crime for many years now, I freely admit that I do not have the depth of background in this field of other noble Lords, not least the noble Lord, Lord Macdonald of River Glaven, who I see in his place. Nevertheless, I am inclined to support this amendment for three reasons, on which I hope the Minister might comment.

First, as I understand it, the amendment simply seeks to extend to third-party material the safeguards that have already been agreed by the Government in relation to data in the possession of the victim. Do the Government share that understanding? If they do not accept that the same protections are appropriate in those two situations, could the Minister explain why?

Secondly, the Victims’ Commissioner asserts in her detailed briefing that it has become “routine” for rape complainants to be asked to hand over excessive personal information, including third-party material. She cites, among other things, a CPS internal report reported in the Guardian in March 2020 to the effect that 65% of rape cases referred by police to the CPS for early investigation advice involved disproportionate and unnecessary requests for information. She quotes officers from Northumbria Police as saying that third-party material is a “real bone of contention” and:

“The CPS routinely ask us to obtain peoples 3rd party, medical, counselling and phone records regardless of whether a legitimate line of enquiry exists or not.”


Is that a picture the Government consider to be accurate?

Thirdly, it is said that this amendment has the full support of the National Police Chiefs’ Council lead for disclosure and of the Information Commissioner. That prompts me to wonder about the position of the Crown Prosecution Service, which seems equally relevant. Does the CPS take a different view from the policing lead and the Information Commissioner and, if so, how does it defend that view? I am sure that other noble Lords, like me, appreciate the difficulty of the task of the CPS and would give it a fair hearing. In summary, the Government seem to have a case to answer on Amendment 106A and I look forward to hearing from the Minister what that answer might be.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on my own behalf and that of my noble friend Lady Jones of Moulsecoomb, who is unable to be with us this evening. My noble friend attached her name to Amendments 79, 89 and 107. The noble Lord, Lord Rosser, has given us a very clear and complete explanation, so I just want to reflect on the average age of noble Lords, as we sometimes do. We really have to work quite hard to understand the way in which people’s lives are entirely contained in their phones, particularly younger people, and what an invasion it is to have that taken away.

The noble Lord, Lord Rosser, referred in particular to Amendment 107 and the situation of immigration officers. I have heard a number of accounts of what has been happening to people arriving, particularly from Calais and surrounding areas, on boats in the most difficult and fearful situations. For people who wish to contact family and friends to say they are safe or wish to make some kind of plan for the future, to lose their phone in those situations or have it taken away is very difficult.

We have not had an introduction to Amendment 103, tabled by the noble Lord, Lord Beith, to which I have attached my name. We have had expressions of concern from the Delegated Powers and Regulatory Reform Committee, and we really would like to hear from the Minister the justification for that. By oversight, I failed to attach my name to Amendment 104. As a former newspaper editor, I think we really need to get a very clear explanation of how confidential journalistic material could be covered under these circumstances. We have grave concerns about freedom and the rule of law in our society, and this is a particularly disturbing clause.

[Lord Beith (LD)]

My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.

Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.

The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.

I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.

It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?

Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.