Anti-social Behaviour, Crime and Policing Bill

Baroness Berridge Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, there are many principles in this Bill of many parts but I shall mention briefly the IPNAs, forced marriage, the IPCC and miscarriages of justice.

I have the privilege of serving on the Joint Committee on Human Rights and I am pleased to hear that our recent report on the Bill is being relied upon in your Lordships’ House and, with one notable exception, being agreed with. However, it is important to remember the context outlined in that report at paragraph 11:

“Preventative measures against anti-social behaviour are in principle a welcome fulfilment of the positive obligation on the state to protect people against having their rights interfered with by others.

An Englishman’s home is his castle and many of us take for granted that yesterday’s storm was an unusual intrusion on a quiet night’s sleep. One only has to glance at the fly-on-the-wall TV programmes filmed in some of our neighbourhoods to realise the need for legislation in this area that is easily enforceable. It is sad that the law is being used not only to protect you from your criminal neighbour but to try to make your neighbour be a considerate one.

I found it most illuminating to speak to lawyers who practise in this area. This brought home to me not only the type of behaviour that has been outlined in your Lordships’ House but the lengths to which witnesses have to go to provide appropriate evidence for the current ASBO and ASBI regimes. Usually it involves months of diary-keeping, spending time every evening detailing the day’s events, recording the exact time of the spitting through the letterbox, for how long the music was blaring, which other people witnessed the dog defecating for the umpteenth time on your front doorstep, and who else can confirm that the cannabis smoke that was wafting into your children’s bedroom was indeed cannabis. However, sometimes the threshold of tolerance apparently just grows so that none of the above registers on the Richter scale of annoyance any more. Often the diary ends abruptly. When asked in court why that is so, sometimes the answer is, “Someone in the family got cancer so there were other things to focus on”.

Many months, of course, often elapse between the behaviour starting, the behaviour becoming persistent, the complaint being made to the authorities, the decision being made by the authorities to take action, the evidence being gathered, proceedings being issued and a directions hearing being heard at court. There is already a huge ask of witnesses who, of course, are telling all this while living in the neighbourhood when this behaviour is still going on. So I welcome the streamlining of the powers, the increasing number of agencies that can apply and the attachment of a power of arrest.

It is also welcome that the breaching of an injunction to prevent nuisance and annoyance will not be a criminal matter. Many children go through phases when they are a nuisance to a neighbour—they knock and run a bit too often, are too loud and maybe for a while they are just caught up in the wrong crowd—but it will now not mean a criminal record. However, I, too, see that some form of reasonableness needs to be added to the test outlined in Clause 1, as recommended in the Joint Committee on Human Rights report.

I would be grateful if my noble friend, before Committee, could clarify Clause 1(5)(a) in relation to the effect of injunctions and the right to hold religious beliefs, which is an absolute right. It is only the manifestation of one’s religion that can be subject to limitation by law as necessary in a democratic society, not the holding of the beliefs per se, as Clause 1(5) currently states.

As I have read the statute, it does not deal with a situation where offences are committed by groups of offenders. Sometimes some of the offenders are over and some under the age of 18, and they need to be tried in one set of proceedings. This should be a simple change. It would be an undue burden on the witnesses I have mentioned to have to attend court twice. I believe a simple amendment has been put forward by the Law Society.

On forced marriage, there has been much debate as to whether to criminalise this matter and I support the Government’s decision to do so. That sends important messages about the basic role of consent in marriage and sexual relationships, of the right of the individual to choose and, conversely, of the appropriate place for cultural, community, family and religious views.

In the ITV programme “Exposure”, I found the comments of the Chief Crown Prosecutor in the north-west, Mr Nazir Afzal, illuminating. The reported cases of forced marriages involved Sikhs, Hindus, Jews, Christians and Travellers, as well as reflecting the appropriate proportion of Muslims. Mr Afzal’s labels are all communities, so criminalisation could assist individuals in those communities to defy the leaders or families and assert their own wishes—in fact, their own human rights. Sadly, however, this legislation recognises an anomaly in Clause 108(3). For the purpose of the criminal offence of forced marriage, it does not matter whether the marriage is a religious ceremony that is not a legally recognised marriage under UK law. As I understand the legislation, someone can be forced into a marriage, which would be a criminal offence, and the spouse who forced them into the marriage would be imprisoned. However, if it was merely a religious ceremony, then the woman—it is usually the woman—has none of the protection of the division of family assets available in our divorce courts. Will she suddenly be entitled to be given the family assets under the Proceeds of Crime Act? Will Her Majesty’s Government please take this opportunity to look at the religious marriages that are not legally binding in UK law that are misleading women, and perhaps look at putting responsibility on the religious leaders who conduct such ceremonies?

With regard to the IPCC, I welcome the fact that the Government are enacting some of the recommendations from the Home Affairs Select Committee. However, the Select Committee also said,

“it is vital to have a body that is truly independent and competent”.

I have to wonder how this is achieved with the proposed transfer of resources from the police forces’ own professional standards departments—the same departments of which it was said by the Select Committee:

“It is unacceptable that Police Standards Departments had made the wrong decision in 38% of appeals”.

Will this really enhance the IPCC’s reputation of independence from the police it investigates, or the credibility of those investigations?

Finally, will Her Majesty’s Government please consider the Select Committee’s recommendation to change the name of the IPCC to the Independent Policing Standards Authority? This would reflect its broader functions—over, for instance, Her Majesty’s Revenue and Customs. It would also serve another purpose. Last week, during the latest plebgate episode, the following actors were on the media stage: three police officers from something called the Police Fed, three chief constables, a Home Secretary, a Prime Minister, a PCC and an IPCC. The accidental similarity of the acronyms of the latter two bodies may also be fudging in the public mind the different roles that they perform. I had to listen very carefully to the news coverage to work out which body they were actually referring to.

Whether one agrees with Blackstone’s formulation,

“It is better that ten guilty persons escape than that one innocent suffer”,

there has always been great protection for the innocent in common law by the presumption of such innocence. When a miscarriage of justice is proved, I am very proud of our history of paying compensation in appropriate cases. I am also proud that our law in this area has recently been upheld by the European Court on Human Rights in the case of Allen v the United Kingdom. The changes outlined in Clause 151 of the Bill are not, apparently, to save money but to make the system more certain for applicants and simplify the case law to apply. However, as your Lordships have seen, there is significant disagreement about whether Clause 151 reintroduces the old case law of having to prove clear innocence to receive compensation. I speak as a lawyer, but to avoid the Committee on this Bill being blinded by the case law, I hope that the Minister will convene a meeting so that Members can hear the arguments of the Home Office, the Joint Committee on Human Rights and of any other interested Members of your Lordships’ House. On a practical note, as our law has already been all the way to Strasbourg, the Government may inadvertently be starting that journey again by changing it—even if the intent is to simplify that law.

Many of these matters will come back to your Lordships’ House in Committee. I am concerned to have the best evidence to present at that stage. If time allowed I would make submissions on Schedule 7 to this Bill. I hope that my noble friend the Minister will assist me and any Members of your Lordships’ House as I have made a request, which the parliamentary police service scheme is seeking to fulfil, to go and see Schedule 7 in action at our ports and airports. It is unusual that they have the power to stop people without reasonable suspicion. I hope that my noble friend can assist in that matter.

Queen’s Speech

Baroness Berridge Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness Berridge]

My Lords, violent crime is down and the UK is a much more peaceful place. It is not often that one wakes up to such a good-news story as the lead item on the “Today” programme. So despite a recession and a decline in police numbers, the UK has seen a substantial and sustained reduction in direct violence over the past 10 years.

These were the findings of the first UK Peace Index, launched in Parliament on 24 April. I, too, remained sceptical of such good news until I saw the quality of the research and the statistical analysis. Between 2003 and 2012, the homicide rate halved in the UK. Violent crime is down from 1,255 to 933 offences per 100,000 people. Broadland in Norfolk is the most peaceful place to live, while unfortunately Lewisham is the least. The UKPI also shows that public perception of the threat of violence is inflated and is apparently linked to mass media coverage of high-profile crimes. One only has to think of the recent wall-to-wall coverage of Boston, but perhaps our diet of “NCIS”, “Miss Marple”, “Law and Order: UK”, “Midsomer Murders” and “Homeland”, to name but a few, does not help matters.

What did not get much coverage was the UKPI’s finding that over the past five years there has been a reduction in the number of first-time offenders. With recidivism rates of around 66% and it costing £40,800 for a year’s imprisonment, preventing the first offence and the beginning of the cycle is vital. It seems that one of the causes is many small voluntary groups doing imaginative youth work, which makes gangs and crime less attractive and helps young people cope with often complex family situations. So while some serious offenders will always need the state as the probation service, many others do not, especially young people. I speak as a trustee of a prison rehabilitative charity, Kainos Community, that works in four prisons in the UK. While we depend on the governor, Kainos staff and prison officers to deliver our rehabilitative community, the prisoners repeatedly say that what they value most are the volunteers who come in to spend time with them. It is this volunteer aspect that a probation service delivered by a charity can give to young people that often the best probation officer cannot. A relationship given from choice not contract can do wonders for a prisoner’s self-worth.

Many of these charities, including the Message Trust in Manchester, have seen that such stable relationships need to be supplemented by training and employment. In January 2013, the chief constable of Greater Manchester Police opened the Message Enterprise Centre, which is creating businesses to train and employ young offenders who, in this economic climate, are, unfortunately, virtually unemployable. A probation provider that might also give you a job is way beyond what the state can give you. The challenge will be whether the huge Ministry of Justice contracts can include the often small, local providers, as without them the rehabilitation revolution in the gracious Speech will not be delivered.

Also in the gracious Speech was the reform of the police, which included the introduction of a police remuneration review body. Before going out for six shifts on the streets of Peckham recently, I was warned that police would complain to me a lot about pay and pensions, but I was very encouraged as their complaints were mainly about poor kit. They were uniform in their view that British and German makes of car for their patrol cars were great kit and that the replacement Japanese cars were poor kit.

I also saw first-hand the need for more sophisticated statistics on the stop-and-search situation on our streets to see what is really happening. However, as I mentioned recently in your Lordships’ House, I was even more convinced that police who exercise the coercive power of the state on our streets must reflect the communities they serve. The statistics I obtained from the House of Lords Library are sobering. More than 40% of Londoners now are not white, but only 11.6% of police constables are from a BME background, and once you go up just one rank the figures on average halve to 5.5% of chief inspectors and 3.8% of chief superintendants. In bald figures, at senior ranks of superintendant and above, the Met has 315 officers, and just 17 of them are from a BME background. I was encouraged that the figures for Greater Manchester Police and West Midlands Police are much better, so it is not an impossible task. It is true that the ratio for PCSOs in the Met is much better at 34.5%, but that post was introduced in 2002 so for how much longer can we listen to the clarion call that this will be the solution to the situation?

I fear that direct entry is now viewed as the solution, but when that other recent innovation, the national College of Policing and its board, has no ordinary person from the communities it polices on it, let alone anyone from a BME background, I find it hard to be optimistic. This issue is often viewed as historical. I am told that what I am saying is very much last-Government, as if this is some kind of fashion, but the Riots Communities and Victims Panel, which looked into the 2011 riots, showed that this is still very much a live issue.

Finally, being a trustee of the think tank British Future, which speaks on identity, migration and integration, leads me, of course, to mention the immigration Bill. Whatever might be the practicalities for the NHS and landlords, I am pleased that we can now speak about immigration without fear of being called a racist. Perhaps this change was inevitable because the latest wave of mass migration, in 2004, was from Poland, and therefore the race and immigration issues were helpfully separated. However, that enforced silence, while people had very real issues to be addressed, sent people to extremes and is one of the reasons why the tone and language of debate can still be acerbic and polemical. Had we been able to talk about this more freely, the debate would now be held in a more constructive manner. As politicians, it is vital that we keep our categories clear. There are legal migrants, illegal migrants and asylum seekers, and we must remember that many British citizens are very recent legal migrants and asylum seekers, which demands that we understand the sensitivities around this issue.

The correct tone in this debate will also help the UK to retain our long tradition of being a refuge for those who need it. In a recent YouGov survey, conducted for British Future on the asylum claims from Afghan interpreters who helped the British Army, 60% of those who expressed an opinion believed that Britain should allow those workers to settle here. We should be justifiably proud that Pakistani schoolgirl Malala Yousufzai is being treated and educated here in Britain. Before its disbandment, the UKBA was open to working with the Asylum Advocacy Group, which was convened by Bishop Angaelos of the Coptic Orthodox Church and various diaspora groups, to aid UKBA officers in dealing with claims arising from Egypt.

I was saddened recently to learn that religious minorities who fled Iraq, including more than 85% of Iraq’s Christian population, went overwhelmingly to the USA, Canada and Australia, rather than here. They did not come to the UK. Unfortunately, global events may require us to be a refuge once again, and I hope—I trust not in vain—that there would in that case be cross-party support for the UK being a sanctuary for those genuinely fleeing persecution.

Police: Racism

Baroness Berridge Excerpts

Thursday 25th April 2013 Lords Chamber

[Lord Taylor of Holbeach]

Since the Macpherson report, which was the initial report, as noble Lords will know, there have been a number of allegations. Indeed, currently there is a review investigating allegations of a conspiracy to cover up this case. We will take that review seriously. It does not alter the fundamental strategy, which is to try to make sure that police numbers and the ethnic make-up of policing reflect the communities that they serve.

[Baroness Berridge]

My Lords, I recently had the pleasure of spending six days out with team A of Southwark Metropolitan Police Service. During that time, we conducted a stop and search of a black man outside the Damilola Taylor Centre. Including myself, there were three representatives of the Metropolitan Police Service handling the coercive power of the state, and every single person who walked past us was from the black community in the area. When will my noble friend the Minister insist that all police services raise their levels so that they reflect the populations that they serve, give a time limit for that to take place and perhaps even make it a performance indicator?

[Lord Taylor of Holbeach]

My noble friend reinforces much of what I have been saying. In January 2012, the Commissioner of the Metropolitan Police initiated the “stop it” campaign as a way of trying to ensure a better balance. The police must use stop and search in a proportionate fashion, and we will consider the outcomes of that strategy. I commend my noble friend on joining in that particular exercise. I attended a dinner here with the Commissioner of the Metropolitan Police the other evening for the parliamentary police programme, which is widely supported by parliamentarians—indeed, Members of this House were present. I commend that programme. Anything that makes us, in politics, more aware of the decision-making and the thoroughness with which the police do their work is worth while.

Justice and Security Bill [HL]

Baroness Berridge Excerpts

Tuesday 19th June 2012 Lords Chamber

[Baroness Berridge]

My Lords, I am a member of the Joint Committee on Human Rights. When we were considering the Green Paper and now the Bill, I seemed always to have had in mind the statue of Lady Justice at the top of the Old Bailey, but when seeking to balance the various injustices in these situations I have come to conclude that her scales need at least seven pans.

First, the Government assert that they are not able to defend themselves and are forced into the settlement of claims. I agree with the Lord Chancellor that that is “extremely unsatisfactory”. Secondly, the Bill would have the claimant and the lawyers in the corridor of the court and evidence seen fully by only one party. Thirdly, in civil proceedings there can be an appeal on the facts, but if, as the Government assert, these cases are so saturated in intelligence information that most of the judgments are secret, people will be less able to appeal and correct decisions.

Fourthly, there is the exclusionary nature of PII where the evidence is not considered by either side. Fifthly, there are apparently strike-outs of meritorious claims, but currently the only example is the case of Carnduff and Rock. Sixthly, how do we ensure the continued development of the balancing of public interest immunity in national security cases? Seventhly, is there information that has previously been disclosed in court proceedings, and thus available to the general public and the press, that would now remain secret? Some of the injustices do not relate to individual cases as the Bill will change the judicial system. It is a fine balancing exercise that, I would add, gives you a headache, and inevitably people will come to different conclusions about the least bad solution.

However, Lady Justice is usually blindfold, which is apt in this situation as your Lordships cannot observe a CMP in full. That is, the hearing has one party excluded. I trooped down to the Royal Courts of Justice in the February Recess to watch a control order case. I spent nine years as a civil advocate and I can spot a court case when I see one, but this did not feel like a court case: namely, a case in which parties try evidence before a judge. It was more like manoeuvrings, with the open advocate, the special advocate and the judge trying to assist to ensure that enough of the allegations were known before the whole thing—the trial of the allegations and most of the evidence—was held in secret behind what I discovered are literally the locked doors of the court. The controlled person was not even there. When I queried that, I was told that it is not unusual because, “there is not really much point”. What I saw worried me and convinced me that the best people to determine this issue were those who have actually done these hearings, which will not necessarily be the most experienced practitioners, judges or academics.

That leaves three groups: those I will call the CMP judges, whose views are not known to Parliament; David Anderson, the independent reviewer; and of course the special advocates. David Anderson QC accepts that CMPs have the capacity to operate unfairly, especially if there is no gisting of the evidence. The last group are the most experienced, and they are not at all convinced. In fact, “inherently unfair” has been their consistent criticism of CMPs. Again, I agree with the Lord Chancellor when he said that the,

“evidence of the special advocates most unsettled me”.

It has been suggested that the special advocates underestimate the effectiveness of CMPs, but that is unusual for any group of lawyers, especially one that includes 22 QCs, not because they are arrogant but because they are really excellent at what they do; QC is a top brand. I would like to see the Government gain the support of these independent advocates before being prepared to support such a fundamental change to our judicial process. I might add that these lawyers, the special advocates, will secure more work if we have more CMPs, and that is a rarity in my experience.

On the injustice of evidence excluded under PII, I join the noble and learned Lord, Lord Morris, but I would be grateful if my noble and learned friend the Minister could set out the statistics of how many cases in the past have led to the successful exclusion of all material, and how many have led to the partial admission of material in open court, such as that achieved so ably in the 7/7 inquest. Further, was this technique used in the Guantanamo Bay litigation which the Government have relied on so heavily? Were exclusionary PII applications made in those proceedings? Also, I am perplexed that the Government apparently settled the al-Rawi case before knowing whether they could have a closed material procedure. When questioned by the Joint Committee, the Lord Chancellor maintained that the Government could have defended the claim if they had had a closed material procedure, but if the Supreme Court had decided in their favour, no proceedings would be left to try. I am perplexed about this.

Moving on, it is hard to see how to ensure the future development of PII in national security cases when under this Bill the judge would be required to accede to an application if there is any national security information relevant to the case, even if he considers that the case could be tried using the existing PII rules. I suspect that we will find amendments tabled during Committee on the Bill. Will less information be available in the public domain than there should be? I think there is a danger that closed material procedures will restrict it.

As I understand the Bill, the difference between closed material procedures and public interest immunity is illustrated using an extension of the example cited in the Constitution Committee’s report of an aircraft accident where the family ended up suing the Government. Let us imagine that we have gone into a closed material procedure and it becomes clear for the first time, behind closed doors, that cockpit video footage exists. That footage is played behind the closed doors. It is akin to the footage that many noble Lords will have seen from a recent inquest into a friendly fire incident that was leaked to the Sun newspaper. Is there any way in which the judge, in a closed material procedure, can balance the interests and pierce the wall of the closed material procedure to put that video into the public domain, given the level of intense interest both in the press and among the public since they know of its existence? As I understand the Bill, that would not be possible. Of course, the claimant may win the claim and the judge may use the powers under Clause 7 to enforce concessions on the claimant, but the public and the claimant will never see that video.

Civil claims are not always about winning or money but about knowing the evidence that establishes the allegation. The same is true for the press, as Ian Cobain, the Guardian journalist who gave evidence to the committee, said. His allegations were viewed as conspiracy theories by the Government, but documents disclosed in court proceedings have sadly proved otherwise. As I understand the Bill, CMP applications are ex parte, so there will never be cases in which the press should be represented to argue the open justice issue. Also, apparently meritorious claims are struck out as the intelligence is so central that it cannot be tried. As I understand the Bill, a claimant is not helped as only the Secretary of State can apply for closed material procedures.

What of confidence in Lady Justice herself? I rely here on the words of the noble Marquess, Lord Lothian, that it is perception that matters. We do not legislate in a vacuum and there is concern about the level of trust that the public have in institutions—except, I think, in the monarchy and the judiciary. On “Thought for the Day” this very morning, the right reverend Prelate the Bishop of Norwich helpfully summed this up for me when he said that confidence in our institutions is dependent on our trust in the individuals in them. Do the public have such confidence in the groups that will give evidence behind closed doors in a closed material procedure?

Before I am accused of being a fantasist, I pray in aid evidence from the Deputy Assistant Commissioner of the Metropolitan Police, Sue Akers. Her witness statement to the Leveson inquiry is as follows:

“Alleged payments by journalists to public officials have been identified in the following categories: Police; Military; Health; Government; Prison and others. The evidence suggests that such payments were being made to public officials across all areas of public life. The current assessment of the evidence is that it reveals a network of corrupted officials”.

Your Lordships will remember better than I the West Midlands serious crime squad. I am not a doomsday merchant, but one has to think about what happens if this system goes wrong. Who will do the public inquiry? Not, I think, a judge—not because they lack the integrity but because what is being asked of them is beyond the capacity of any human being if both sides are not there to bring forward the evidence and to rebut one another’s claims. Human beings are fallible. Home Office officials have been known to use the power to redact documents to cover up Home Office mistakes. MI6 was found to be incompetent at checking where its seconded staff were for over a week. How will all this not be less challengeable if behind closed doors?

Finally, I ask the Government to consider very carefully the implications of the following scenario. What will be the position under this Bill of the trial in which the right honourable Jack Straw MP is currently sought to be added to proceedings in his personal capacity over allegations from a Libyan military official that he authorised his rendition to Libya? The Government are an existing party to these proceedings and a CMP would be eminently possible. Is Mr Straw going to sit in the corridor outside a locked court? Imagine that Mr Straw loses the claim and has to pay £500,000 damages, and all that is done behind closed doors. He has also previously had security clearance, so he will potentially have knowledge to rebut these allegations from his direct experience, which he will not be able to use.

[Baroness Manningham-Buller]

Ministers do not have security clearance—if only.

[Baroness Berridge]

I welcome that correction from the noble Baroness, but I think that the majority of the point still stands. Do your Lordships trust the Twittersphere to carry this information properly without muddying the waters with potentially inaccurate party political accusations? “The Conservative and Liberal Democrat Government changed the law and Jack Straw, the former Labour Foreign Secretary, had to pay damages”—is that fewer than 140 characters? Will this enhance confidence in our judicial process?

Civil justice, with its disclosure provisions, is often the only avenue open to individuals to get the details of what has happened. This should not be underestimated. It is an old adage that justice must not only be done but be seen to be done. Could this Bill actually make matters worse for the security services and the Government? Can no one knowing the truth actually be better than, “We know but we cannot tell you why.”?

Queen’s Speech

Baroness Berridge Excerpts

Tuesday 15th May 2012 Lords Chamber

[Baroness Berridge]

My Lords, I wish to speak briefly this evening about relationships, but, no, I am not about to delve into the excellent proposals to speed up adoption or improve contact with absent parents. I want to talk about public confidence in two essential institutional relationships, between the security services and Parliament and between Parliament and the judiciary.

The justice and security Bill aims to improve parliamentary oversight of the security services. I think it has found its time. There is concern and confusion about the accountability of the security services in our democratic society. I was intrigued to read the following comments only last weekend:

“By their very nature the world’s top intelligence agencies are a law unto themselves”.

MI6 is among those named.

“Yet it would be wrong to assume that within the intelligence world there are no laws”.

I was relieved to read that.

“It is governed by its own strict set of rules”.

This view of the security services having only their own internal regulation is not from the blogosphere or Twitter but Richard Beeston, foreign correspondent of the Times. The position was correctly outlined in the Reith lectures by the noble Baroness, Lady Manningham-Buller, who said that,

“ultimately the Service is answerable to the law and the courts”,

and that it was the security services who pushed the Government for their existence to be put on a statutory basis.

Also recently, in response to questions from journalists concerning the basis for the police investigation into MI6, the commissioner felt that he needed to respond, “It is the law”. I find the need to re-assert this basic fact quite troubling. Her Majesty’s Government are clearly alert to the reputational issue, as it forms part of the argument underpinning the proposals in the justice and security Green Paper that secret courts are needed, where one party to the proceedings is excluded for part of the time. The argument is that without secret courts the Government cannot defend claims such as those from people who alleged that the British Government were involved in their rendition to Guantanamo Bay as the Government cannot produce such evidence in open court.

It is important to remember that the reputational issue arises in a context of declining trust in our institutions generally and matters which cannot be blamed on court process. I am referring of course to the tragic case of MI6 employee Gareth Williams—so utterly terrible for his family. It was also concerning for the public to hear of MI6’s failure to hand over evidence to the police investigation and to report his absence from work for over a week. It is a necessary part of oversight for the public to know such issues and I hope that the inquest into this death, as well as the recommendation from the Joint Committee on Human Rights report, have lead Her Majesty’s Government to drop the proposal for inquests to be held partly in secret. Most of all, I hope that the discussion of oversight of the security services will be a platform for informed debate and awareness of the accountability of our security services.

Secondly, the Leveson inquiry is dealing with the issue of how you fit the power of the modern media into a traditional separation of powers model. What are the appropriate boundaries between media and politicians? A not wholly dissimilar issue concerning the relationship of the judiciary and the legislature arose when the Joint Committee on Human Rights considered the Green Paper. I am extremely privileged to serve on that Joint Committee. Our 24th report outlines the response to the justice and security Green Paper, and page 16 says that the Green Paper,

“redefines the meaning of a ‘court’ for certain purposes, and in our view it would be beneficial to parliamentary scrutiny of such a measure if it could be informed by judicial views on a matter which goes to the very nature of the judicial function”.

Although this might sound rather novel, it is not completely without transferable precedent. The judiciary as a group responded to the Green Paper on legal aid. Also, as I was looking at previous humble Addresses to see if there was any kind of standard to be adopted—there is not—I found the speech from the noble and learned Lord, Lord Woolf, outlining what happened before proposed changes to custody periods for life sentences were introduced under the Criminal Justice Act 2003:

“Before the law was introduced, and under the guidance of the noble and learned Lord, Lord Falconer, a meeting was held at the Middle Temple, where nearly all those who were playing a leading role were present to discuss the proposals”.—[Official Report, 27/5/10; col. 147.]

In that case, the Lord Chancellor knew the judiciary’s view but I do not know whether the meeting was in private or whether there was an appropriate channel for the legislature as a whole to know these views.

The present Lord Chancellor gave evidence to the Joint Committee that he has spoken to the Lord Chief Justice and two High Court judges, thereby performing the role of conduit of some judicial views to the Government. What about Parliament? I agree with my noble friend about the utter integrity of our judiciary. As the Green Paper’s proposals are for a change in the courts, not so much a change in the law, I felt that without representative views from the judiciary, I lacked a piece of the jigsaw properly to perform the role of parliamentary scrutiny.

Finally, like my noble friend Lord Thomas of Gresford, I found some of the words in the Ministry of Justice’s outline for the Queen’s Speech on this Bill interesting: allowing courts to consider all material relating to the case, even when national security prevents that information being made public. How can you as a claimant put all your material before the court if you are not a part of the proceedings? To be a little technical, how can you bring your rebuttal evidence if you have not heard the evidence you are to challenge?

I fear that a more accurate statement is: allowing courts to consider all one party’s material relating to the case. It is worrying that the one party to which I refer will normally be the Government. There is a healthy tension and balance between a defence and security service perspective and the legal and civil liberties perspective. The issues in the Green Paper involve human rights, national security requirements and common law principles of what is and, importantly, what is not a fair trial.

That is a difficult balance with no perfect solution, but the issues are immensely important. In the months ahead, I look forward to seeing your Lordships’ House at its very best as guardian of the constitution and the civil liberties of our citizens.

Stephen Lawrence

Baroness Berridge Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Henley]

I am very grateful for the intervention of the noble Lord, Lord Blair, who knows more than anyone about these issues. I am also very grateful for the support that he offers to the Home Secretary as regards taking this very carefully. I think that my right honourable friend will also note in particular his comments on the possible assistance that HMIC may wish to give to the Met in this instance.

[Baroness Berridge]

My Lords, a recent After the Riots report from the Riots Communities and Victims Panel drew on statistics that one in three people think that the police are corrupt and an IPCC survey stated that 43 per cent of black people felt that a complaint against the police would not be dealt with impartially compared with 31 per cent generally. As much as one is encouraged by the comments of the new Metropolitan Police Commissioner and the new leadership at the IPCC, this is the level of public confidence in those bodies. Will the Minister consider what, in essence, I believe Doreen Lawrence is asking for, which is some level of independence and impartiality in this inquiry because, in effect, you have a police investigation into the police? I ask the Minister to comment on the converse side of that: in the current context, is there not a danger that there might be a temptation for the Metropolitan Police to be too hard on past conduct to allay present connected concerns about racism, which also would not be a just resolution to this matter? Would introducing independence and impartiality achieve the best way of establishing the truth of what has happened and would improving public confidence in the police be best for the police themselves and especially for the Lawrence family?

[Lord Henley]

My Lords, on occasions, I have heard allegations that one in three people think that the police are corrupt, but other surveys seem to show relatively high levels of satisfaction with the police, both in the white community and in the BME community. It is much the same for both groups, although it varies once one gets into sub-groups. I note what my noble friend said about the need for a new independent inquiry. That has not been ruled out and it is a matter that my right honourable friend the Home Secretary will consider in due course. As the noble Lord, Lord Blair, put it, at the moment it is right for the Met to conduct and complete its internal review and for this to move on in the appropriate way. I think he was also right to stress the need not to rush on too fast in these matters.

Protection of Freedoms Bill

Baroness Berridge Excerpts

Tuesday 29th November 2011 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I thank my noble friend Lady Hamwee for moving her amendment. It relates to the briefing from the Information Commissioner that was circulated prior to the Committee stage. He expressed some concern that the reference in Clause 2 to the conclusion of the investigation was too open-ended.

I am sure that we would all wish the police to be able to conclude every investigation swiftly with either a conviction or conclusion that no crime has been committed. But, we would all acknowledge that in reality that is not the case, as the noble Lord, Lord Dear, has explained. There will often be cases when it is impossible to identify a suspect immediately and when evidence must be retained for a significant period in the hope of identifying a suspect in the future. My noble friend Lady Hamwee and the noble Baroness, Lady Royall, referred to cold cases. The case that comes to my mind is the one that has recently been reopened on the murder of Stephen Lawrence.

Evidence, including biometric material, must be retained in these circumstances to enable comparison with the suspect and, for example, to ensure that the suspect’s legal team can examine and probe all the previous police lines of inquiry. If all evidence is not retained in such circumstances, the suspect identified later will be able to argue to the court that the destruction of such material would render it impossible for him to receive a fair trial. In such circumstances, even if Amendment 5 were to be made to the Bill, a chief officer would be unable to certify an investigation as complete, which is I think what the noble Lord, Lord Dear, was referring to. In addition, where it is possible for the police to conclude an investigation the introduction of such a certification requirement for all investigations would impose a new bureaucratic process on the police that would be both unnecessary and, when aggregated across the number of investigations conducted, costly. The illustration given by the noble Lord, Lord Dear, makes that quite clear.

For the reasons I have given, we are unable to accept Amendment 5, and I therefore ask my noble friend to consider withdrawing it.

[Baroness Berridge]

My Lords, I presume that the amendment relates to the previous paragraph in relation,

“to section 63D material taken … in connection with the investigation of an offence in which it is suspected that the person to whom the material relates has been involved”.

On my reading, there is an enormous safeguard in that once the police become convinced that the person has not been involved, the negative applies. The person’s DNA material is taken but if it is then established that that person was not connected to the offence at all, surely the ability to retain the material in those circumstances fails. Therefore you do not have an enormous amount of material being retained until the conclusion of the proceedings. Will the Minister clarify whether I am correct in my understanding that the police can retain that material until the conclusion of the proceedings but only if they remain convinced that that person is still suspected of being involved in the commission of the offence?

[Lord Newton of Braintree]

My Lords, perhaps I might intervene briefly. The noble Lord, Lord Dear, made some effective practical points against the amendment. However, I am afraid that I am one of those simple souls who find it easier to look at these matters in relation to an example rather than in a general academic sense. There is a clear-cut case in which some of these issues might have arisen: namely, that of the gentleman in Bristol who was arrested—I forget whether he was charged—for the murder of Miss Yeates. It is now universally agreed that this was a mistake. Somebody else has been convicted and sentenced.

I do not expect my noble friend to be able to answer this because it is a bit of a bouncer, and it applies to all the amendments that we have so far discussed. How would the Government's proposals for retention apply to that case, and what difference would the amendments that have so far been discussed make to the case? I do not know the answer and would have to speculate. I suggest that it might be sensible if the Minister wrote to me about this rather than attempting an answer off the cuff.

--- Later in debate ---

[Lord Henley]

I certainly cannot guarantee to do anything between Committee and Report and I doubt even necessarily between Committee and Third Reading. We will do what we can. If I can bring any further intelligence to the House in the Bill’s later stages, I will certainly do so. However, it would be wrong for me to give any assurances at this stage. The important thing to say is that we can at least break the link between the police barcode and the laboratory. Whether we can do something better will depend on what the company manufacturing these machines manages to do.

[Baroness Berridge]

My Lords, I would be grateful if my noble friend the Minister could confirm that the anonymising of these profiles in the batches of innocent people’s material is compatible with our duties as outlined by the European Court in relation to the retention of innocent people’s material. When speaking to the people in charge of this procedure in various companies, will he bear in mind the fact that the Government might in the future legislate to prevent innocent people’s DNA being deleted from the database? If that should occur, what is the possibility of relinking people’s profiles with the police national computer? Is there any way in which their names, addresses and identifying details on the national computer can be got rid of to prevent that eventuality ever happening so that the samples remain completely anonymous and can never be reconnected to a name and address?

[Lord Henley]

I will have to take advice on this but my understanding is—I will write to my noble friend if I am wrong about this—that once we have broken the link between the police barcode and the samples, it is broken and cannot be repaired. However, if I am wrong on that, I will let my noble friend know. As regards whether we can get improvements made to the machines so that we can properly delete these things, that will have to wait on the discussions to which I referred earlier.

Human Trafficking (Further Provisions and Support for Victims) Bill [HL]

Baroness Berridge Excerpts

Friday 25th November 2011 Lords Chamber

[Baroness Berridge]

My Lords, globalisation has brought many benefits. Cheap flights mean that this is the most well travelled generation. Internet communication gives to many more choice over where to live and work, and our food reflects a global supermarket. But all these benefits are also used by those who wish to trade in human lives, who have taken advantage of the portrayal of western countries as having streets paved with gold, so that human trafficking is now surpassed only by drugs as the most profitable illegal trade.

I believe that William Wilberforce would tell us to get our eye back on the ball and I am grateful to my noble friend Lord McColl for this Bill, which enables your Lordships to do just that. I know my noble friend's depth of concern is shared by many people, as I have received more e-mails requesting me to speak in this Bill than on any other legislation in my 10 months in this House. Although much of the Bill mirrors the European directive, which I am so pleased Her Majesty's Government will be implementing, I wish to speak specifically to two aspects of the Bill: the legal advocate and the national rapporteur.

The legal advocate seeks to address the terrible situation outlined by my noble friend Lord McColl that, in a three-year period, about one-third of those trafficked children in the care of a local authority just went missing. This problem urgently needs addressing, and the system of a social worker and advocacy support is not working properly. As I understand it, some social workers have not even heard of human trafficking, and apparently it is not part of the university curriculum for training social workers. Would it not make sense to have some specialist social workers for trafficked children, rather like the specialist foster carers that are currently being piloted by Barnardo’s?

Although I appreciate the particular vulnerability for trafficked children as they are in a foreign country and have to deal with a number of agencies, I understand the reluctance of the Government to provide a different system of support for these children. Many of the other children in local authority care who have not been trafficked are arguably equally as vulnerable. There will never be limitless resources and allocation must be just to all vulnerable children. However, if an increased focus in future on missing trafficked children and better training and awareness among professionals does not lead to a sharp decline in these statistics for missing trafficked children over the forthcoming year, would my noble friend the Minister agree to review the introduction of a legal advocate or guardian in those circumstances?

Secondly, I turn to the national rapporteur, which I think is such a lovely phrase, unlike the Inter-Departmental Ministerial Group on Human Trafficking, which is the Government's fulfilment of Article 19 of the directive. But seriously, in most other jurisdictions the national rapporteur is independent of government, which means that they can scrutinise the Government on the prevention and monitoring of trafficking. However, the national rapporteur should also be a figurehead, an individual who could give much needed public awareness of human trafficking and ensure that a clear message is communicated. The pink ribbon is the symbol for breast cancer and the daffodil is the symbol for Marie Curie Cancer Care, but human trafficking has a blue heart, a purple ribbon, a blue blindfold and a purple teardrop. Consistent public messaging is clearly needed.

Necessary and admirable though this Bill is, it deals only with the supply side of human trafficking. I believe that a national rapporteur who is a respected individual—and please note that I do not use the word “celebrity”—could help with the demand side of human trafficking. Will young men consider a message from the Inter-Departmental Ministerial Group on Human Trafficking about the possible plight of the woman who he pays for sex on a stag weekend? I think not. On such a vital issue, I cannot believe there is no suitable individual for this role.

With hundreds of thousands of people trafficked into the EU every year, it is so disappointing that only 100 to 300 prosecutions are brought each year. I think that the eurozone has more than one crisis on its hands. Many professionals are working hard to bring perpetrators to justice, and the evidence of the victim is vital. Many victims are prepared to testify, and we should be grateful that they are willing to remain here to do so. But is there not a mutual aspect missing here: that victims often need compensation for the crime committed in the UK to rebuild their lives and so should be allowed leave to remain here long enough to claim such compensation. Please would my noble friend the Minister ask that the discretion to grant leave to remain be used not just for the benefit of our judicial process but for the benefit of the victim? It is shameful that no human trafficking victim has successfully claimed compensation in the UK.

The sooner globalism communicates the message that our streets are not paved with gold, the better, and I sincerely hope that Anti-Slavery International is wrong that the figures reveal about a tenth of the problem. Sadly, I recognise the urgent need for this Bill and I commend it to your Lordships’ House.

Protection of Freedoms Bill

Baroness Berridge Excerpts

Tuesday 8th November 2011 Lords Chamber

[Baroness Berridge]

My Lords, I believe that there is an irony in the Title of the Bill. The Government are introducing a piece of legislation to protect freedoms which, to a significant extent, have been infringed by their actions. Like many unscientific people, I marvel at the advances in DNA and its role in crime detection, but I am pleased that many of the controversies surrounding the DNA database are dealt with by this legislation. I wish to speak briefly to the principles of Part 1 of the Bill, the nature of DNA material and the impact on communities.

Deeply embedded, not only in our constitution but in the conscience of citizens, is the principle that you are innocent until you are proven guilty. The corollary of this presumption is that citizens can go about their daily lives free from the unwarranted intrusion of the state or, as the European Convention on Human Rights and Fundamental Freedoms expresses it positively under Article 8, the right to respect for their “private and family life”.

At a time when the European Court of Human Rights has come in for quite a drumming, it is sobering to reflect that England and Wales needed to be told by the court that the blanket and indiscriminate retention of genetic material indefinitely of innocent people is a breach of Article 8. I am embarrassed that an 11 year- old British child was one of the applicants in the case of S and Marper v United Kingdom. How did the country of ancient liberties and the Magna Carta come to this?

I welcome Part 1 of the Bill, which at long last puts the national DNA database on a statutory footing. Further, the introduction of a nationwide framework for the destruction or retention of genetic material should mean a consistent approach to this issue in future. The Bill brings to an end the inevitable police authority postcode lottery, when the matter was left to the discretion of individual chief officers. Of course, once an offender is convicted, the issue is very different but, from my reading of the Bill, is it really proportionate that an 18 year-old who is convicted of drunkenness or driving without due care and attention should have their DNA profile retained indefinitely by the state? How is such a situation in line with the spirit of the Rehabilitation of Offenders Act? Is there not a point at which, if someone is in no further trouble, the profile is removed?

Secondly, I turn to the nature of the material. “If you are innocent, why worry about being on a database?”, has been the response of some of the tabloid press and even the Home Office under the previous Government. Apart from the fact that we live in a free country, DNA samples degrade over time. Samples do not merely identify you, like fingerprints or the DNA profile; DNA samples are you. Therefore it is valuable material, especially in unscrupulous hands. I welcome the introduction of a strict regime to deal with the destruction of DNA samples because, although I am not a pessimist, not long ago, the names, addresses, and bank details of 7.25 million families in receipt of child benefit were downloaded on to disks, put on a courier bike and never seen again. I did feel for the then Chancellor, just like I felt for Bob Quick who walked into Downing Street with highly classified information on public display. It is easily done.

I hope these serious but rare examples explain why I have been ill at ease with the thought of DNA samples stored somewhere instead of being destroyed. Also I was troubled to read in the report of the Joint Committee on Human Rights, of which I am now privileged to be a member, of the practical difficulties—or perhaps insuperable obstacles—in the destruction of innocent people's DNA profiles. Apparently innocent and guilty people’s DNA samples are held in groupings that are now difficult to separate. To avoid the misuse of these innocent profiles in the future, I hope that the Minister will be able to assure your Lordships’ House that the Bill will result in the destruction of DNA profiles, and not merely the deletion of the connection between the DNA profile and the identity of the person whose profile it is. Further, I urge the Minister to have a strict timetable under Clause 25 for the destruction of existing biometric material, although I understand that there are resource implications.

Finally, I move to the effect on particular communities. In 2007, the Home Affairs Select Committee concluded in its report, Young Black People and the Criminal Justice System, that:

“A larger proportion of innocent young black people will be held on the database than for other ethnicities given the small number of arrests which lead to convictions and the high arrest rate of young black people relative to young people of other ethnicities”.

I understand that you are three times more likely to be arrested if you are a young black man than your white counterparts. The noble and learned Baroness, Lady Scotland, in giving evidence to the Home Affairs Select Committee, predicted that soon three-quarters of young black men would be on the DNA database. According to the Human Genetics Commission, this prediction came true in November 2009. By the end of last year, just over 500,000 black people in England and Wales were on the DNA database. Not only is this a travesty, but it is hard not to believe the anecdotal evidence, supported sometimes by former senior police officers, that the power of arrest has on occasion been used merely to obtain DNA. Against this background, I ask the Minister to consider whether the commissioner should have a defined role in monitoring the ethnic profiles of people on the database.

How did the country of ancient liberties and the Magna Carta come to this? It is not a rhetorical question. Infringements on citizens’ liberties often must occur when public safety is at risk. But people, and Governments, often overreact to a threat to their safety. That is why your Lordships’ House had to prevent the introduction of excessive detention periods. Even if DNA techniques were like “CSI: Miami”, the state keeping the DNA of 1 million innocent people would still be an overreaction. I welcome this Bill.

Police Reform and Social Responsibility Bill

Baroness Berridge Excerpts

Tuesday 24th May 2011 Lords Chamber

[Baroness Berridge]

My Lords, perhaps I might add to the point made by the noble Lord, Lord Beecham, in that this is not just blurring the distinction between the police and crime panel and the police commissioner. What the amendment proposes is that a power of patronage be given to the police commissioner over the panel whose purpose is to be a check and balance and to call him to account. Surely that does not extend the logic which I have heard so often in your Lordships’ House: that power is being concentrated in one person. This amendment would in fact give even more power to that person and confuse the relationship even further between the commissioner and the panel.

I submit to the Committee that it would only make sense to have some kind of election within the panel which would keep the roles distinct. In the circumstances mentioned by the noble Lord, Lord Beecham—of suspension on the grounds that the commissioner has been charged with a criminal offence—surely the patronage that was previously exercised to appoint someone from the panel to deputise could, in the eyes of the public, be polluted by the fact that the commissioner is now standing charged with a criminal offence. Therefore, the function of deputy could again be polluted. To have the panel itself perform some kind of election is a matter of regret, having heard so many representations about the need for independence in policing. It seems from the Committee’s discussion of this amendment that co-opted, independent members would not be eligible to be the deputy commissioner, so I query the logic behind this amendment. It could pollute and give even more power to the commissioner in those circumstances.

[Lord Hunt of Kings Heath]

My Lords, perhaps it would help if I came in because that was an interesting point about the issue of pollution and people being tainted if the police commissioner had to stand down, or was suspended or incapacitated in any way. Take the example of a police commissioner where the charge was corruption: the idea that a member of that person's staff could then be appointed the police commissioner is just not going to run. Would the Minister be prepared to take this away? I accept that my noble friend Lord Beecham has put a suggestion forward as to how you emerge with a credible acting commissioner. There will be other suggestions; I do not think he is suggesting that he has all the answers and I do not think that anyone does. What we are pretty convinced of is that the approach in the Bill will just not do.