Protection of Freedoms Bill

Baroness Hamwee Excerpts

Monday 6th February 2012 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, I, too, was pleased to add my name to this important amendment moved by the noble Lord, Lord Armstrong of Ilminster, who has set out his concerns powerfully today and in Committee. I have little to add to what my noble friend has said. I would merely commend the work of the Joint Committee, which did an excellent job, and say that while the Government have rightly recognised the practical impossibility of having to push through emergency legislation in a state of national emergency while Parliament is dissolved, they still have a duty in many ways to take seriously the committee's concerns over the ability of Parliament to legislate in certain emergency situations in order to provide powers necessary to extend the detention period to 28 days.

Perhaps most importantly, I echo the committee's concerns over the serious risk of jeopardising a fair trial if Parliament is to be provided with enough information properly to scrutinise whether the extension was necessary. As my noble friend has said, the scrutiny of legislation within such a short deadline is of course extremely difficult. Indeed, it could be dangerous if Parliament came to the wrong conclusions. The amendment is a measured response to the concerns which were expressed by the Joint Committee and, as has been said, it provides the Secretary of State with an option to bring in emergency legislation by order in certain circumstances where it is deemed truly necessary and expedient.

It is not mandatory but it is enabling. The Government, if they so wish, could still rely on emergency primary legislation. However, if there were concerns about the balance between having sufficient information to inform debate and the risk of jeopardising a fair trial, they could introduce an executive order. As my noble friend has said, this amendment makes entire common sense; as she also said, we must be able to trust in the judgment of the Secretary of State during times of national emergency. I believe that she should, in these rare circumstances, have the power available to her.

[Baroness Hamwee]

My Lords, the noble Lord, Lord Armstrong, has done a sterling job in this area and I feel a little embarrassed to ask questions, but I will because that is what we are here for. First, I share his and the noble Baroness’s concerns about the danger to a fair trial in the circumstances that the amendment covers. It has always seemed to me that primary legislation in these circumstances is almost likely to be ad hominem. I do not know whether that is the right way to express it, but it could be read as being very personal to an individual.

I should like to ask the noble Lord about two phrases in his amendment. The first is “time constraints”. I am not entirely sure what that means. It could be read as simply meaning management of parliamentary business. I dare say that it is intended to indicate insufficient time for adequate scrutiny, although I am not sure that that is implicit. The second phrase is,

“unacceptable risk to public safety or to security”.

I read that as being objective rather than subjective on the part of the Secretary of State and the Attorney-General. I am not sure whether I am correct in this but neither am I sure how one gauges an unacceptable risk as distinct from an acceptable risk. Those matters have to be subjective. One may often have seen in such a provision “the Secretary of State considers that” rather than the more objective approach in this phrase.

Protection of Freedoms Bill

Baroness Hamwee Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Henley]

My Lords, if the noble and learned Baroness asks me to do that, then of course I will. It is obviously very important to get these things right—I want to get them right. Again, it is always a question of getting the balance right. That is what we are trying to do this evening. As I said, I suspect that the noble Lord may want to come back to this at a later stage. We will see. In the mean time, I hope that he is prepared to withdraw his amendment.

[Baroness Hamwee]

My Lords, at the risk of straining my noble friend’s patience—he has been very patient—he offered to come back on points that have arisen today. It is obvious that we are going to continue this subject with the next group of amendments, which we will come to next week. It would be extremely helpful if the noble Lord responded, as he has offered to do, not just before Third Reading but before we return to this next week. He may not wish to give an undertaking to that effect but I leave him with that thought. As the debate has gone on, I have made more and more notes on his Amendment 50A, which will be the first amendment next Wednesday.

[Lord Henley]

My Lords, I do not know whether it will be next Wednesday when we come back to this. I remind the House again that we are on Report not in Committee, and I think I have been interrupted and intervened upon more than one would expect. I will try to write to my noble friend before the next day on Report on this Bill. Whether it will be next week, I do not know.

Protection of Freedoms Bill

Baroness Hamwee Excerpts

Tuesday 31st January 2012 Lords Chamber

Moved by

[Baroness Hamwee]

1: Clause 1, page 2, line 6, after “police” insert—
“(iii) taken from a person detained under section 136 of the Mental Health Act 1983,”

[Baroness Hamwee]

My Lords, in moving Amendment 1, I will speak also to Amendment 2. Amendment 3 is also in this group and is in the name of the noble Lord, Lord Campbell-Savours. This amendment refers to Section 136 of the Mental Health Act 1983, which allows for the detention, in a place of safety, of someone found in a public place apparently,

“suffering from mental disorder and … in immediate need of care and control”.

Black Mental Health UK, together with Big Brother Watch and GeneWatch UK, brought concerns to me and other noble Lords about the taking of DNA samples and fingerprints in the circumstances covered by Section 136 that I have just described. The people concerned have been detained in a place of safety; they have not been arrested. They are at a point of crisis in their lives, and the organisations pointed out that the intimate process of taking DNA samples might cause further trauma to an individual who is at his most vulnerable, as I am sure your Lordships will understand.

They wrote to the Minister who is the policy lead on DNA, who replied, referring to the Police and Criminal Evidence Act and explaining that an individual detained under Section 136 is not arrested and so there is no power for DNA samples or fingerprints to be taken; and, if they are taken, that is unlawful. The new Section 63D(2)(a), which would be introduced by Clause 1 of this Bill, requires their destruction. My initial reading of the letter from Black Mental Health UK and the reply from the Minister made me think that the concern was about the impact of taking the sample, and that what was needed was a more careful observation of the restriction—in other words, that samples should not be taken when it is unlawful, and that this might be emphasised in the relevant code of practice or guidance.

However, when I looked at the proposed new Section 63D(1), I wondered whether this situation actually fell within it, and therefore within Section 63D(2), which requires destruction of the samples. Looking at the provisions at the top of page 2, we are talking here about fingerprints or DNA,

“taken from a person under any power conferred by this Part of this Act”—

PACE—

“or … taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence”.

There is no power to take samples or fingerprints and nor are they taken with consent. Hence, my amendments would bring within Section 63D(1) samples and fingerprints taken from a person who is detained under this section of the Mental Health Act.

Earlier in the week, at about the same time that the Minister replied to Black Mental Health UK, I saw that there was a Written Answer to two Questions, I think, from the noble Lord, Lord Ouseley. I have been in touch with him today. He wishes he could be here but is not very well today, and so I am begging his support in absentia. He knows I am going to do that and he has not asked me not to—indeed, he says that he supports these amendments. I beg to move.

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[Lord Henley]

If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.

I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.

I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,

“any other case,”—

in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,

“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.

We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.

I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.

[Baroness Hamwee]

My Lords, I do not think that we will have an opportunity to come back to mine. Of course, I am glad that the Minister and I are focused on the same outcome—the destruction of the material. My concern is that the answer to the Parliamentary Questions and the letter from the Minister rely on the new Section 63D(2) of PACE. However, as I had hoped I had explained, I do not think that it applies. The new section starts “This section applies to” and then in paragraphs (a) and (b) sets out what it applies to. My concern is that material taken when the person is not arrested, as the Minister has made clear, and has not given consent would not fall within this and therefore the provision for destruction in new Section 63D(2) would not apply.

I am glad to hear what the Minister says about the code and I am of course not going to press the amendment today. But my concern was that, by relying on a section that in my view does not apply—I do not think that we have quite bottomed it out—there might be resistance to destruction, which the Minister has said that the code will make quite clear is required. Although not within the context of the Bill, perhaps this is something that he and I might have a further word on outside the Chamber because we are clearly aiming at exactly the same outcome. Having said that, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Baroness Hamwee]

The noble Baroness has referred to the figures that she gave us at the previous stage. She said that 23,000 criminals a year would no longer be on the database who could commit 6,000 further crimes. She has answered the point of my noble friend Lord Phillips and confirmed that these include minor offences. Rereading Hansard, I was not clear whether the 23,000 were those within years four to six, because some of the cases mentioned in the debate related to crimes where there had been more than a six-year period.

As noble Lords said on the previous occasion we discussed this matter, it is not entirely black and white. As we discussed in Committee, if one asked a random group of the public about this, most would want a longer period of retention. That is possibly correlated with those who watch entertaining but unrealistic television dramas; I know that I am affected by these things. We all know that if you asked the same group of people about capital punishment, you would probably get a very hard-line answer, which is why most of us try to avoid asking that question.

My noble friend Lord Phillips said that though we would all agree that a society with a full range of surveillance would be a different society, few of us would be able to articulate why that was so. I have to say that I am among the less articulate on this. I do not think anyone could say that what the Government have proposed is in any way a casual approach to retention or one which completely reverses the current approach. Indeed, it is a pity that what is proposed in the Bill is so hedged about with conditions that this is not so very different a piece of legislation. I agree that, of course, we should not be casual about crime and the prevention or detection of crime. Similarly, we should not be so cautious that we are casual about privacy, our culture and the intervention of the state in our privacy. The noble Baroness said in Committee that,

“there is a fine line between the preservation of … freedom and privacy”,—[Official Report, 29/11/11; col. 146.]

on the one hand and the delivery of justice and the protection of citizens on the other. I also acknowledge the fineness of that line but I think that I am on the other side of it from her.

[Lord Henley]

My Lords, as always, I am very grateful to my noble friend Lord Lester of Herne Hill for his assistance and advice in relation to what the Joint Committee on Human Rights feels about this issue. I am also grateful to my noble friend Lady Hamwee for what she had to say. Certainly, we will do what we can to provide better evidence of the use of DNA in convicting criminals as and when we can. However, I refer the noble Lords, Lord Campbell-Savours and Lord Hughes of Woodside, and possibly even the noble Lord, Lord Harris of Haringey, to the figures. These are some of the figures that we have; obviously, more will become available. Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember as we look at this amendment.

I also give an assurance to the noble Lord, Lord Hughes of Woodside, who was worried that material taken from crime scenes would be lost. That is not the case. Material taken from crime scenes will still be taken; we are talking about material that is taken from individuals, whether criminals or not. That is a very different matter. My noble friend Lady Hamwee addressed a point of disagreement about whose DNA you should keep and for how long. We know that the noble Lord, Lord Campbell-Savours, feels that there should be a national database containing everyone’s data. He would like to start with a voluntary database on which we can all put our DNA. We will discuss that when we reach his amendment. That might be hunky-dory and all that but it is not what we want, nor do we think that we should pursue a compulsory line in that regard.

I have explained what evidence we have. That is something we will look at but I also think we ought to look at other matters which influence this decision. The first thing to point out to the noble Baroness, Lady Royall, is that they would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model. She says that that model was agreed without any analysis whatever. I have given some figures and we will provide some more in due course but we will also look at the remarks of Mr Keith Vaz, chairman of the Home Affairs Select Committee, at Committee stage on this Bill in another place. We will also look at what the ECHR had to say with regard to the Marper case referred to by the noble Lord, Lord Dear. I was very grateful to him for his intervention, particularly as he stressed the important point of this being a question of balance. My noble friend Lady Hamwee also stressed that point.

I believe that the party opposite is persisting in its approach to keep the DNA and fingerprints of innocent people for many years, no matter how little evidence was ever uncovered, and to keep huge numbers of individuals’ DNA and fingerprints on the national databases just in case they go on to commit crime in the future. That is not something with which we can agree. The party opposite pays scant regard to the judgment of the European Court of Human Rights in the S and Marper case, which noted with approval the system which has been in place in Scotland for some years. I remind your Lordships that the Scottish system, seemingly endorsed by the European court and on which we have modelled the proposals in the Bill before us today, was put in place by the Police, Public Order and Criminal Justice (Scotland) Act 2006, which was presented to the Scottish Parliament by the then Labour Justice Minister, Cathy Jamieson. I do not think that the Labour Party is in power in Scotland at the moment.

Noble Lords opposite contend that our proposals are in some way a charter for dangerous criminals such as rapists which will allow dangerous individuals to roam the streets, committing serious offences with no way of tracking them down. The contention that every individual suspected of rape or any other serious offence will instantly come off the database as a result of these proposals is just not true. As we have discussed previously and at some length, those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. The police will do that and that is similar to what is happening in Scotland. Those arrested for a qualifying offence but not charged—oh! I was wondering whether the noble Lord wished to intervene but he is obviously addressing his Front Bench.

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[Baroness Royall of Blaisdon]

My Lords, of course I recognise what the European Court of Human Rights said, but my Government, when they came to the view that the period should be six years, believed that it was compliant with the ruling of the ECHR. I was not suggesting that the Minister was going to agree with me; I was asking him to come back with further evidence of the situation in Scotland. There must be some facts and figures. The facts relating to Scotland that I have put before the House have been questioned, and I would like more facts about the situation in Scotland. I would like to know whether it is indeed the case that the police have not asked for an extension from three to five years.

[Baroness Hamwee]

My Lords, with the leave of the House, perhaps I may say to the noble Baroness that asking whether the police have or have not sought extensions is one matter, but asking why not seems to be asking the Minister to prove a negative. I thought, not just now but a few moments ago, she was asking the Minister to explain why not.

[Baroness Royall of Blaisdon]

My Lords, forgive me if I misled the House. I did not mean to ask why not; I wished to know whether or not the police had asked for an extension. I beg leave to withdraw the amendment.

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[Baroness Hamwee]

The noble Baroness pointed to the words “or otherwise” at the end of the amendment. I may not have been paying sufficient attention to the argument, in which case I apologise, but if this matter is considered further perhaps she would take on board that within this definition the impairment is through only physical or mental disability or illness, and that the last five words are a description of what might cause the physical or mental disability or illness. Therefore, one cannot read “or otherwise” as extending the impairment. I repeat: the impairment is only through disability or illness. As I listened to the noble Baroness, I thought that she was asking us to read “or otherwise” as adding to “disability or illness”, which I do not think it does.

[Baroness Stowell of Beeston]

I am sorry if I in any way misled your Lordships. In her definition of those final five words—particularly the use of “otherwise”—the noble Baroness is correct. I was seeking to make it clear that impairment through physical or mental disability could be due to old age or otherwise. I am not trying to introduce something new; I am saying that it is possible for the impairment to be not just limited to old age. I hope that I am making myself clear; it does get rather complicated. However, in simple terms, I think that the noble Baroness is right.

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Moved by

[Baroness Hamwee]

15: Schedule 1, page 113, line 3, at end insert—
“Work-related requirements6A Regulations may provide that a claimant who—
(a) has a right to reside in the United Kingdom under the EU Treaties, and(b) would otherwise fall within section 19, 20 or 21,is to be treated as not falling within that section.”

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[Baroness Hamwee]

My Lords, Amendment 15 deals with membership of the National DNA Database Strategy Board. In Committee, I moved an amendment requiring rules about the composition of the board to be included as part of the governance arrangements. The Minister reassured me that the Government's rules would include full membership of the board. She said that an independent element in the form of representation from the Information Commissioner's Office and the National DNA Database Ethics Group would be included. She also said that she would be happy to receive suggestions to strengthen the independent element. This is such a suggestion.

My point in that debate and now is that an independent element need not be, and possibly should not be, a member of the board in a representative capacity. Noble Lords will all have experience of boards to which independent members bring exactly that: independence. They come as individuals with not only independence but judgment, experience of the wider world and so on. If they are representatives of other organisations, they have a rather different role to play. My reason for moving the amendment again is not just to respond to the invitation issued in Committee but to ask the Government to bear this in mind and not exclude the desirability of having true independence involved in the governance of the board. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend for her explanation in moving her amendment. The first thing I will make clear to her is that we are not averse to including on the National DNA Database Strategy Board someone who is wholly independent in the sense that they have no direct or indirect interest in this field and, as such, can exercise a role akin to that of a non-executive director, as my noble friend explained and illustrated. All I can do at this time is restate what I said in Committee: namely, as she acknowledged, that the governance rules that must be published under the new Section 63AB(6) of PACE will include the full membership of the board, and that membership will continue to include an independent element in the form of representation from the Information Commissioner's Office, the National DNA Database Ethics Group and the Forensic Science Regulator. We do not consider it necessary to specify the membership of the board in the Bill or at this time to specify what my right honourable friend the Home Secretary might include in the governance when it is decided and published, but I am sure that in reviewing the membership of the board she will consider the points that have been made by my noble friend. I think she will want to ensure that we are not so specific in those governance rules that they prevent us changing any of the independent elements of the membership of that board in future, when different organisations might be associated with DNA.

I hope that my explanations have given my noble friend the assurance she needs that we understand the importance of an independent element in the board and that we want to retain flexibility for the future in the make-up of the board. However, we will certainly take into account the points she has made.

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[Baroness Hamwee]

My Lords, I thank the Minister for that reply. I do not require the detail now; that would not be sensible. My point is to ensure that the door is not closed to prospective independent members who are not representative of or members of related and connected organisations. The Minister said that the Government are not averse to that, and I am glad that the door will be open and that the point is, I hope, taken. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

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[Lord Henley]

My Lords, I shall speak also to the other amendments in my name in this group; that is, Amendments 19, 22, 25, 26, 27, 28 and 29. We will also consider in this group Amendments 20, 21 and 23, in the name of my noble friend Lady Hamwee, and Amendment 24 in the name of the noble Baroness, Lady Royall. I shall respond to those as I come to the end of my remarks, but, at this stage, I shall speak just to my own amendments.

We consider a child’s biometric information to be highly personal and sensitive and, as such, it should be protected. It is right that schools and colleges should be required to obtain the written consent of a child’s parents if they wish to take and process this information.

We listened carefully to the concerns raised in Committee about these provisions. In particular, my noble friend Lord Lucas and the noble Lord, Lord Rosser, argued that the requirement to obtain the written consent of both parents would place too great a bureaucratic burden on schools and could have the effect of dissuading schools and colleges from using biometric recognition systems.

The Government are persuaded that we should remove the “dual consent” requirement and instead provide for a system whereby all parents, and any other individual with parental responsibility for a child, must be informed in writing that the school or college intends to take and process the child’s biometric information and that they have a right to object. As long as no one objects in writing, the written consent of only one parent will be required. This change strikes the right balance between ensuring that the views of both parents continue to be taken into account, with their right to object preserved, and ensuring that the administrative burden on schools and colleges is not too great.

The Government’s amendments also make the consent requirements in the Bill more consistent with all other forms of consent that schools and colleges are required to obtain, therefore alleviating any additional bureaucratic burden. The main difference in this instance is the express provision to notify all parents and the stipulation that, if any parent objects, the processing of their child’s biometric information cannot take place. I beg to move.

[Baroness Hamwee]

My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.

Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.

The UN Committee on the Rights of the Child has made it clear that:

“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.

Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.

I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.

The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,

“it is they who should in the first instance be informed and consulted about the use of their personal data”.

[Lord Lucas]

My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.

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Moved by

[Baroness Hamwee]

20: Clause 26, line 4, at end insert “and the child”

[Baroness Hamwee]

Our procedures do not allow me to come back on a debate on Report, so I move this amendment to the Minister’s amendment to make a point and ask a question. He said that the Government trusted that schools would notify parents and children of the provision in an age-appropriate manner. My problem is that Amendment 19 refers to notifying only the parent. We have got to this point as a result of our focusing on consent. My question is whether guidance will extend—I think he has more or less said this—to notification to the child in the way that I suggest through this amendment. Of course, that will not deal with the consent but, given the later provisions of Clause 26, am I right in assuming that what I am seeking will in effect apply, because Clause 26 will not be workable otherwise? I would be happy with a yes to both those points. I beg to move.

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[Baroness Hamwee]

I beg leave to withdraw the amendment.

Amendment 20 (to Amendment 19) withdrawn.

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Moved by

[Baroness Hamwee]

33: Clause 38, page 29, line 44, at end insert—
“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

[Baroness Hamwee]

Amendment 33 amends the provision dealing with the need for judicial approval in cases of directed surveillance and covert human intelligence sources in the work undertaken by environmental health officers dealing with noise. I moved this amendment in Grand Committee. I know that the Minister is sympathetic to people who suffer from noise disturbance, so I am trying it again, not just for that, but in order to pursue a couple of points. I should declare that I am a vice-president, one of many, of the Chartered Institute of Environmental Health.

In responding to the amendment in Grand Committee, the Minister referred to meetings between the institute and Defra and to work on revising the RIPA code of practice, but if surveillance is unlawful, which is what concerns the institute, the code cannot make it lawful. I am rather cantering through the points covered in that debate. I accept that most of what environmental health officers do in investigating and dealing with noise nuisance does not amount to covert surveillance requiring authorisation. The Minister said that the code would make it clear that,

“authorisation under RIPA is unlikely”—

I stress that word—

“to be necessary”.—[Official Report, 15/12/11; col. GC 357.]

Uncertainty over this is not helpful. The Minister referred to the right to privacy, but I do not believe that this is a matter of privacy—privacy is keeping a matter private after the fact—but is about obtaining information. She said that if noise—for instance, of an argument—is so loud that it can be heard outside a property, there can be no realistic expectation of privacy. However, as I understand it, private information is defined by RIPA according to its content, not its audibility. Indeed, individuals can have a right to privacy in respect of activity even in a public place.

If the local authority is to serve an abatement notice warning that monitoring may be carried out, it has been suggested that it cannot be covert, but whether surveillance is covert is a matter of fact in each instance. The Minister said that the code makes clear that authorisation is not required, but in fact the code states that a perpetrator is not normally to be regarded as having forfeited a right to privacy and that authorisation may not be necessary.

Coming back to those three words, “unlikely”, “normally” and “may”, can the Minister give me any further assurances? I beg to move.

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[Baroness Hamwee]

My Lords, I thank my noble friend for having clearly spent quite some time on this since we spoke earlier this afternoon.

As my noble friend will know, a code cannot trump legislation but greater clarity may be of assistance. Certainly, I was with her much more this time on her response than previously. It may not satisfy the institute entirely but if the code can be made clearer and reduce hesitancy on the part of environmental health officers in using the powers that they have, that would certainly be a good thing. I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Moved by

[Baroness Hamwee]

34: After Clause 38, insert the following new Clause—
“Matters subject to legal privilegeInvestigatory powers: legal privilege
(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—
“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege.(8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—
“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.
(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(13) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.” (3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—
“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—
(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—
(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—
(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) or (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.”

[Baroness Hamwee]

My Lords, I beg to move Amendment 34, which has been prepared by the Bar Council. Any noble Lord who looked at the Marshalled List would have been surprised that anyone without parliamentary counsel experience could have come up with this, and indeed it was a former parliamentary counsel who drafted it. I take this opportunity to thank the noble Lord, Lord Henley, for the meeting he had with representatives of the Bar Council a few days ago.

The amendment is underlaid by the common-law right of a client and his lawyer—or indeed a lawyer and his client; it works both ways—to communicate privately. I do not think I need to emphasise the importance of this, nor can I overemphasise it. It is a fundamental human right and a major building block of our administration of justice. If a client feels that his communication might be disclosed and used against him, he will edit what he tells his lawyer, and his lawyer will inevitably be handicapped by that.

There is a statutory protection against the use of legally privileged communications when a client is in custody, but in 2009 in the case of Re McE, this House, when it was still sitting as a court, held, although not unanimously—the noble and learned Lord, Lord Phillips of Worth Matravers, dissented—that Part II of RIPA permits the covert surveillance of meetings between defendants and lawyers. This ruling applies to other covert investigation techniques: the interception of communications, the acquisition of communications data and the use of covert human intelligence sources. There is therefore a problem where instructions are taken outside a police station, such as a group of people at an environmental protest, or indeed when one meets any group of people, or any individual, outside particular premises. The ruling also applies outside criminal law when an individual brings a civil action against the state, and to think that the state itself could be listening into and using what he tells a lawyer reminds us of regimes that are very far from the model of what we wish to be in this country.

Following McE, orders were made that altered the authorisation provisions and revisions were made to the codes of practice, but in the view of the Bar Council these provide insufficient safeguards. The codes of practice provide for the violation of legal professional privilege only in “exceptional and compelling circumstances”, but the test contains no special protection for privileged material. For directed surveillance, such circumstances are said to arise only in cases where there is a threat to national security or to “life or limb”. The phrase “threat to life or limb” is not clear; it could extend to quite minor offences where physical injury has arisen from a lack of reasonable care or a breach of a duty that gives rise to strict liability.

The real difficulty is that these changes do not address the fundamental point that covert investigatory powers should not be used to target privileged communications. The orders, in any event, do not apply to the interception of communications and the acquisition of communications data. This amendment would protect legal professional privilege except where it is abused for criminal purposes.

The noble Baroness said in Grand Committee that no one could regard themselves as being beyond the law or immune from investigation or prosecution. I do not challenge that. Indeed, I share that view. Therefore the inequity exception, as it is known in the trade, is included, which provides that privilege does not attach to information that is held or to communications that were made in the furtherance of a criminal purpose. The proposed new clause would simply bring RIPA into line with other legislation. When RIPA was introduced, the issue of privilege was not debated at all, and the courts have been left to construe statutes. This is not a case of the courts having any basis other than an assumption of the construction, “Parliament must have intended”. I do not think that Parliament addressed its mind to it.

I have two further points. First, the noble Baroness mentioned the requirement of codes of practice that cases of legally privileged communications which are intercepted or retained, or are the subject of interception, should be reported to the Interception of Communications Commissioner. I take that point but it is after the event and does not meet the basic concern.

Secondly, the noble and learned Lord, Lord Scott of Foscote, queried whether the way in which the provision was drafted would give a wide power to the Secretary of State to pre-empt how the courts might deal with a criminal purpose. He pointed to the words “or otherwise”. The matter is most likely to arise on an application for authorisation but it could arise later in an investigation where the fruits of a covert operation tend to include lawyer-client communication, which would not attract the iniquity exception.

The Bar Council and I believe that the addition of the words:

“For the purposes of this section”,

in two places would confine regulations which are proposed to provide for determinations only for the purposes of the relevant section of RIPA and not be as extensive as the noble and learned Lord feared. I am grateful to him for pointing out the need for a little tweaking.

This is an issue of really important principle, which I appreciate I am bringing to the House late in the evening. Perhaps the exit of a number of noble Lords indicates that we are not going to go on to what they were staying for. I have no doubt made myself a bit unpopular therefore by this but nevertheless it is an important point of privilege.

[Lord Henley]

My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that.

Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further.

We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance.

This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage.

Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack.

--- Later in debate ---

Having gone through the more detailed response to the amendment of my noble friend, I hope that she will now feel able to withdraw it.

[Baroness Hamwee]

My Lords, I shall certainly do so. What the Minister has explained to the House is of enormous significance. Given the time, I shall confine myself to just one remark. He gave an assurance that there is a distinction between using information to counter a threat and using it as evidence for prosecutions, with the former being permissible and the latter not. I wonder whether in practice it is entirely easy to disentangle the two. The Minister has given me material to think about, as he will to others who are much more expert than I am on the technicalities. I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

Policing Protocol Order 2012

Baroness Hamwee Excerpts

Wednesday 25th January 2012 Lords Chamber

[Lord Imbert]

My Lords, you will be relieved to know that my contribution on the Motion will be very brief. I am grateful to the noble Lord, Lord Hunt of Kings Heath, for having secured the time for this debate. I will not go over the ground that he so ably and wisely covered. Suffice it to say that every effort must be made to maintain the global reputation of the British police for being the world’s leader in impartial policing, without fear or favour—no matter the colour of a person's skin, their origin, political beliefs or station in life.

So far as the consultation on the protocol for policing is concerned, I repeat the comments that I made when the matter was debated in your Lordships’ House many weeks ago. We had been assured and reassured, right from the time when the police reform Bill was introduced, that the fear that the election of police and crime commissioners could be hijacked by political extremists was without foundation. Yet we now find that the Government have had second thoughts, and we now have a protocol setting out the boundaries within which the chief constable and the police and crime commissioner will work. I congratulate the Government on their political courage and good sense in accepting that, perhaps after all, such a protocol is necessary to ensure that a maverick PCC or, indeed, chief officer does not upset the essential balance required for the continued good governance of policing, and that the chief constable's traditional pursuance of non-political, impartial policing is preserved.

I support the regret Motion moved by the noble Lord, Lord Hunt of Kings Heath, but if I may, I will finish with one plea. My final comment is to ask that the Home Office finalise the financial management code—as he who pays the piper calls the tune. I trust that this code, after proper consultation, will help to curb any misunderstandings over financial responsibilities and control for all the stakeholders in this new governance structure.

[Baroness Hamwee]

My Lords, I was a little surprised when I saw the terms of the Motion because having lived through the Bill, as other noble Lords did, it seemed that the issue of a protocol was consulted almost into the ground. However, I realise that there may be a distinction between consultation on the content of the protocol and consultation on the statutory instrument. I should fess up; I am a member of the Merits of Statutory Instruments Committee, but I was not there on this occasion. That committee is always particularly sensitive to the need for consultation alongside there being adequate time for Parliament to consider an order before it comes into effect, so I can understand how this arose.

I wondered whether it may have been that the complaint was not about the time spent on consultation but about the fact that the consultees had not come from a sufficiently wide group of people. I am not sure that it could have been different at the time that the work was going on last year, but the landscape will change. There will be more players in place, and I for one am reassured by paragraphs 43 and 44 of the protocol. Paragraph 43 refers to,

“periodic review, in particular during the first term of office of the first PCCs”.

The noble Lord, Lord Hunt, has suggested that that should be a quite early review. That would be useful, because we will then see in office not only the commissioners but the police and crime panels. Police authorities have taken part in the consultation but the police and crime commissioner—I emphasise “crime”—has a wider remit than simply the policing function. I would like to see local authorities, possibly through the panels but in their own right, involved in any further consultation that might take place.

As has been said, this started as a concern about what was meant by “operational”. As I understood it from the fringes, there was endless drafting and discussion involving those who were most concerned about it. I heard one of those individuals say that by the end of it he wondered whether there was any need for a protocol at all. However, we have a statutory protocol and, as the noble Baroness has said, that was because there was such a call for it in the House. We are in an interesting position; we have something of a narrative in the order, which is almost a plain English guide to the statute. Regard has to be had to the protocol, but perhaps the Minister can give the House some assurance this evening as to the status of the protocol as against the statute. I assume that the statute must override it if there is any conflict, but I am not suggesting that I have seen any conflict.

As I read this, the protocol deals not just with “what” but with “how”. That comes not only from the protocol itself but from Section 79(6) of the Act, which says in the definition of policing protocol that it is a document that makes provision for,

“ways in which relevant persons should … exercise, or refrain from exercising, functions”.

So that has a purpose of its own as well.

Violence against Women

Baroness Hamwee Excerpts

Thursday 19th January 2012 Lords Chamber

[Lord Henley]

My Lords, the noble Lord is taking the issue way beyond the Question on the Order Paper, which relates to the Council of Europe’s convention. Obviously we will consider those points, but those are matters for domestic law and not matters relating to compliance with this convention, which relates to combating violence against women.

[Baroness Hamwee]

My Lords, I welcome the consultation being across Whitehall, because many agencies are involved in the many issues. How are we to reconcile the localist approach of police and crime commissioners and candidates with an eye to election with the need to ensure that police budgets contain an adequate line for what is essentially not a very populist issue? In other words, how do we make it a populist issue?

[Lord Henley]

My Lords, again my noble friend is going way beyond the Question on the Order Paper in bringing in the subject of police commissioners. We are talking about whether we can comply with this Council of Europe convention—compliance that involves changing the law in a number of areas. That is what we are consulting on at the moment, but we are also looking at other issues, particularly extra-territorial jurisdiction.

Protection of Freedoms Bill

Baroness Hamwee Excerpts

Thursday 12th January 2012 Grand Committee

Moved by

[Baroness Hamwee]

151G: Clause 101, page 91, leave out lines 7 and 8 and insert—
“(b) in the case of an authority which is listed only in relation to particular information, that authority in respect of other information”.”

[Baroness Hamwee]

Since I will find it so difficult to explain my concerns, I suggest that after those interesting exchanges noble Lords might like to give their minds a bit of a rest for a moment.

I apologise to the Minister for raising this matter at this stage, but I started to question the wording of the provision only a very few minutes before time ran out for tabling amendments at this stage. As I said to him, it is better to be shown to be an idiot than to fail to ask a question that needs to be asked.

This amendment would alter the definition of a relevant public authority for the purposes of the meaning of a publicly owned company. It appears to exclude an authority listed only in a limited fashion entirely from the definition of the component part of a publicly owned company. One rapidly gets into the dangers of double negatives, but I would have thought that the exclusion should extend only to the information, which is not referred to in the schedule to the Freedom of Information Act. In other words, if an authority is listed in a limited fashion, it should nevertheless be included to the extent of that limit.

--- Later in debate ---

[Lord Henley]

My Lords, I am sure that my noble friend is right when she says that it is better always to ask the question rather than, as she put it, to take the risk. As I understand it, the amendment proposes to extend the scope of Section 6 of the Freedom of Information Act beyond the extension already proposed in the Bill. However, the amendment seeks to do so in a way that I think is at odds with the approach taken in the Act.

At present, Section 6 of the FOI Act brings within the scope of the Act only companies that are wholly owned by the Crown or any single public authority listed, with limited exceptions, in Schedule 1 to the Act. Companies that are wholly owned by more than one public authority, or by the Crown and one or more of those Schedule 1 public authorities, are not currently subject to the Freedom of Information Act. Clause 101 therefore amends Section 6 of the FOI Act to widen the definition of a “publicly-owned company”, with the effect of extending the Act to companies wholly owned by the wider public sector. This simply means that any combination of public authorities subject to the Act, with limited exceptions, or by one or more of those bodies and the Crown, will be brought within its scope.

I mentioned that there are limited exceptions to this change. In one such instance, where a company is owned in part or wholly by a body that is itself subject to the Freedom of Information Act in respect of only some—and not all—of the information that it holds, the company will not be covered. It is this exception that my noble friend proposes to remove, so that such companies are subject to the Act.

I appreciate the intentions behind my noble friend’s proposal. Although relatively few public authorities are subject to the FOI Act only in respect of some information, and the number of companies excluded through the current proposal is likely to be small, the case for adding such bodies may well often be strong. However, I do not consider blanket coverage for these companies in the way proposed to be the most appropriate solution. As their parent body does not exercise wholly public functions—hence their partial coverage by the Act—it follows that some of these companies will also perform functions that should not automatically be subject to the Act.

That is not to say that it will never be appropriate for such bodies to be subject to the Act. Indeed, that may well be the case where any company of this sort exercises, for example, functions of a public nature. However, in such cases other means exist, and are already being used by the Government, to extend the scope of the Freedom of Information Act. These include secondary legislation under Section 5 of the Act to include bodies performing functions of a public nature. It would be more desirable to consider adding companies of the type relevant to the amendment on an individual basis where strong reasons for including them exist. We think that, as it were, a piecemeal approach, rather than the blanket approach proposed by my noble friend, is the better way for doing that.

I hope that that explanation is of some use, but if it is not I hope that my noble friend can at least read what I have said and consider whether that is satisfactory from her point of view.

[Baroness Hamwee]

I thank the Minister for that response. I follow everything he says, except, perhaps, his conclusion because I was not seeking blanket coverage. My draft would deal with the coverage of particular information only. I will read what he said, and I wonder whether I may be able to discuss this with him or his officials in order to understand whether the Government have in mind examples of the piecemeal extension to which he referred. Having said that, I beg leave to withdraw the amendment.

Amendment 151G withdrawn.

--- Later in debate ---

[Lord Wills]

The two amendments in this group tackle a problem with policing the Freedom of Information Act that the Information Commissioner has identified as a priority. Under Section 77 of the Act, a person or authority commits an offence by deliberately destroying, amending or concealing a requested record with the intention of preventing the disclosure of its contents. Currently, the offence is triable only in the magistrates' court where the maximum penalty is level 5 on the standard scale, which is currently £5,000. The Information Commissioner, who is responsible for policing the Act, has argued that such offences should be triable either in the magistrates’ court or the Crown Court. The latter option would permit a fine greater than £5,000 to be imposed in more serious cases. The Information Commissioner has identified this as a real problem in ensuring compliance with the Act. Amendment 151K would provide that option.

Allowing offences to be tried on indictment would have a further benefit. At present, proceedings for offences which are triable only in magistrates’ courts have to be brought within six months of the offence occurring, but it can take several months between a request being made, a complaint about it being made and it reaching the Information Commissioner’s Office. The Information Commissioner’s Office’s investigation is likely to take several months and, by the time any offence is discovered and the evidence accumulated, it is likely to be too late to prosecute. However, cases triable on indictment are not subject to the six-month limitation. In providing this option, the amendment would have the advantage of allowing prosecutions to be brought more than six months after the offence had occurred and would make policing the Act considerably more effective.

Amendment 151J provides an alternative approach to dealing with the six-month time limit. Under the amendment the offence would remain triable only in the magistrates’ court but proceedings could be brought within three years of the offence provided that this was no later than six months after the prosecuting authority had obtained the necessary evidence. There is precedent for the wording of the amendment: it is identical to that already found in several statutes which have also been amended or designed to avoid the six- month limit on prosecutions. These include: Section 31 of the Animal Welfare Act 2006; Section 11A of the Employment Agencies Act 1973; Section 64A of the Public Health (Control of Disease) Act 1984; and Section 12(4A) of the Theft Act 1968.

I hope the Government will look favourably on these amendments, which would give the Information Commissioner an additional weapon that he feels he needs. All of us want to see the Act enforced effectively. I beg to move.

[Baroness Hamwee]

My Lords, I support the thrust of the two amendments, or either of them. As the noble Lord, Lord Wills, has said, it is important to give the official who is tasked with applying the legislation the tools to do the job properly. After all, he and his office are in the best position to analyse where the obstacles are. This is a clear problem and he has been clear about the need for a solution. I hope we use this opportunity—I do not like the jargon—to add to the toolbox.

[Lord Rosser]

I support the amendments. I certainly do not intend to explain the purpose of them because my noble friend has already done that. The key point is that it is the view of the Information Commissioner, based on his or her experience, that there should be the opportunity, if necessary, to have cases heard at the Crown Court. Obviously, this relates to the severity of the fine that can be imposed because there is a restriction if a case is dealt with in the magistrates’ court. The issue of the timescale within which proceedings have to be initiated has also been raised.

I hope the Government will be able to give a sympathetic response, not least because the amendments are based on views that were expressed, I think in evidence to the Justice Select Committee on 13 September last year, by the Information Commissioner and the changes that that individual felt were necessary in the light of experience.

--- Later in debate ---

[Baroness Royall of Blaisdon]

My Lords, I have little or nothing to add to what my noble friend has said. He is right to raise this complex and extensive issue. It is one that has clearly caused many problems for citizens and it would seem that my noble friend’s proposals might be a means of assisting people in their quest for information. This could lead to the roads on which they live being better maintained and safer. It may also assist in resolving difficult and lengthy disputes. I recognise this is an extraordinarily difficult area and I look forward to the Minister’s reply. I wish her well.

[Baroness Hamwee]

The advice “Don’t go to law” might be extended to “Be very careful about buying a house on an unadopted road”. The former private enterprise, which the noble Lord, Lord Soley, described, of clamping one’s neighbours’ vehicles is quite extreme.

Perhaps I may ask a few questions. I do not suggest that the problems the noble Lord has described are not important but, on the amendment, first, is he suggesting that this extends to any public authority beyond the Land Registry? I suppose that local authorities holding a local land charges register might be relevant, but this is all public authorities. Secondly, did the letter from the Land Registry refer to land having gone to the Crown in the situation of intestacy, and thirdly, is there a concern about more than the adoption of roads? The amendment is more extensive than that, as I understand the thrust of it.

[Lord Soley]

Perhaps I should answer those points briefly. The reason for including other public departments is because there can overlap. For example, some of these roads are part-owned by a local authority, so you cannot rule out an interest by another public authority. The noble Baroness’s second point about the Crown is very important. I had thought of adding to it but I had already said enough, in a sense. It is said—although I have never known this to be tested—that if you can prove there is not an owner you can approach the Crown to buy the road. It is interesting because that is in direct conflict with what the Land Registry is saying, which is that all roads are owned. My understanding, from talking to one of the lawyers involved in a case, I think, was that if you proved it is not owned—presumably you would have to do that by checking back through wills and so on—you can then approach the Official Solicitor to buy the land. The duty is not on you to prove that it is unowned—I am not sure you can do that in this context. I think that is an important point.

I am not quite clear what the noble Baroness meant by the adoption issue. There is a whole range of names for these roads: private roads, unowned roads, adopted roads. Is that what she means—

[Baroness Hamwee]

Further to the issue about roads and the general situation described, the amendment could apply to all sorts of situations, I suggest.

[Lord Soley]

The noble Baroness may be right although I asked for it to be drawn up with a specific focus on this. If it does I am not sure that it is the end of the world but the intention is basically on unadopted roads.

--- Later in debate ---

[Baroness Royall of Blaisdon]

I am grateful to the Minister for introducing the amendments and for the letter that he wrote to noble Lords earlier this week. We welcome the government amendments as far as they go. Like the Minister, I commend the noble Lord, Lord McColl, for his tireless and extraordinary efforts on this important issue and the fact that he introduced his Private Member’s Bill, which I believe paved the way for the amendments before us today. As the noble Lord said, his Bill goes further than the EU directive and I, too, look forward to seeing it in Committee in the near future.

These amendments represent a clear admission by the Government that they were wrong in their initial decision to opt out of the EU directive on human trafficking. The claims made at the time by the Prime Minister about the EU directive were ill informed at best when he said,

“does not go any further than the law that we have already passed”.—[ Official Report, Commons, 15/9/10; col. 873.]

As the Minister explained, the government amendments serve to implement Article 9 of the directive, which requires member states to establish extraterritorial jurisdiction where the offender is one of their own nationals and grants member states discretion over the establishment of jurisdiction over non-nationals, where any part of the offence was committed in a member state’s territory or the victim is a national. We welcome the Government’s amendments to introduce extraterritorial jurisdiction over UK nationals who traffic or facilitate the trafficking of people. We also welcome the introduction of jurisdiction over non-UK nationals who commit or facilitate trafficking from within the UK. However, I ask the Minister to confirm three things about the jurisdiction extensions. First, will the extension of the UK’s jurisdiction also apply to those cases where the offence is committed for the benefit of a legal person established in the UK even if no trafficking activities took place in the UK? Secondly, will it extend to offences where the victim is a national or resident of the UK? Thirdly, will the amendments also extend the same extraterritorial jurisdictions over legal persons of the UK operating overseas or benefiting from trafficking perpetrated overseas as required by Article 5 of the directive?

The Government’s amendments to extend the UK’s jurisdiction to cases of trafficking connected with but not perpetrated in the UK is a welcome move and brings us closer to compliance with the EU directive. However, we are deeply concerned that the Government have sought to act in a way that presents us with an absolute bare minimum compliance and that without further primary legislation the UK could fall short of compliance. In particular, the government amendments do nothing to address the disappearance from the system of child victims of trafficking in this country. With 32 per cent of identified child victims of trafficking having gone missing from care between 2007 and February 2010, it would seem clear that the present system of care for child victims is not working. Charities such as CARE and Ecpat UK, which campaign to end child prostitution and pornography and trafficking of children for sexual purposes cite lack of continuity in care and children being passed from one professional to the next as a key reason for the disappearance of these children and have called for the introduction of a system of guardians to address the highly specific needs and risks that child victims of trafficking are exposed to. Articles 12 and 13 of the directive make it clear that signatories must provide, “assistance, support and protection” for child victims of trafficking and ensure that the,

“necessary assistance and support measures are provided for child victims of trafficking, taking account of their individual needs and concerns”.

I ask the Minister how the Government consider the UK currently complies with Articles 12 and 13 and, in particular, how present arrangements for the care of child victims of trafficking are uniquely tailored to the particular needs and vulnerabilities of these children, as required by Article 13. I also ask the Minister how many child victims of trafficking are known to have gone missing from care in the last year, and whether he thinks that the present and proposed arrangements go far enough to protect against disappearance.

There are other areas, too, where action is required in order to bring the UK into compliance with the directives that are not touched upon by these amendments. Article 16 of the directive requires that the UK establish a national rapporteur to independently monitor implementation of the directive. The Government have stated that they believe that the current Joint Ministerial Committee should be sufficient for this purpose. However, I would ask the Minister how the committee can operate independently of government and how regularly it publicly reports.

Finally, as the noble Lord, Lord McColl pointed out, the directive requires that adequate provision is made for access to legal counselling and representation for victims of trafficking under Article 10. I am specifically concerned about how cuts to the legal aid budget currently being considered in the LASPO Bill will affect such provision to some of the most vulnerable individuals. I should be grateful if the Minister could tell me what measures the Government are taking to ensure that the UK is compliant with this article.

In a debate in this House the Minister stated his view that:

“The remainder of the directive can be implemented in full through secondary legislation and through various operational measures and operational routes”.—[Official Report, 25/11/11; col. 1281.].

I am somewhat sceptical about whether secondary legislation can deliver many of the changes necessary to bring this country into compliance with the directive and, crucially, whether it can provide better protection for the hundreds of vulnerable trafficked children who have gone missing from the system. I note the request from the noble Lord, Lord McColl, for further information about the secondary legislation envisaged and I look forward to receiving that information from the Minister.

I welcome the amendments brought forward today and I look forward to hearing from the Minister what additional measures the Government will be introducing to fully implement this important directive.

[Baroness Hamwee]

The opt-in to the directive is of far more than technical importance: the message that the opt-in sent was of great significance. I do not want to repeat much of what has already been said but, on the issue of a national rapporteur, I echo the noble Baroness and what the noble Lord, Lord McColl, has said previously about the importance of its independence. The Government have recently published a trafficking strategy and—because it is human nature—to expect them not to defend their own strategy and to see the issues in a more objective way is to demand more than is reasonable.

I also echo the request for an analysis of the matters that can be dealt with by secondary legislation—it is quite clear that the previous speakers have a much better grasp of the detail than I do—so that we can be assured that every point has been picked up, rather than an assumption that secondary legislation will do the job.

[Lord Henley]

My Lords, I hope that I can respond relatively briefly but I will have to write a number of letters to noble Lords.

On the issue of what further work we have to do through secondary legislation and other means, I shall write in detail to my noble friend, both noble Baronesses who have spoken and place a copy in the Library setting out exactly what we intend to do. The advice I have is that, although we were very nearly compliant, there were certain things that we had to do through primary legislation—and we have found this vehicle through which to do them—and other things that we can do through secondary legislation. Obviously it would be right for me to spell that out in detail.

My noble friend also had some queries about the drafting of the new clauses. In particular, he was concerned that the new clauses referred to offences committed by “a person”. I can assure him that “a person”—as I am sure the noble and learned Lord, Lord Scott, would have confirmed if he was still in his place—includes legal persons. That will include companies and other bodies, other than an individual as he and I understand that. That is the nature of the law.

--- Later in debate ---

Moved by

[Baroness Hamwee]

177: Clause 114, page 97, line 35, after “2” insert “(excluding paragraph 12)”

[Baroness Hamwee]

My speech moving Amendment 177 will be a little longer than the previous speech. This amendment takes us back to powers of entry to probe one particular point. I must make it clear that I support the restrictions on powers of entry. I know that the matter is likely to be pursued further on Report, and there are bound to be particular issues around particular powers. This power is one where I fear we may be in danger of throwing out a long-standing baby with the bath water.

My amendment would mean that the commencement of Schedule 2 would not be automatic but dependent on an order by the Secretary of State. It is merely a device to raise an issue which came to my attention only a few days ago, well after we had dealt with Schedule 2. Paragraph 12 of that schedule repeals Section 8(2) of the Landlord and Tenant Act 1985, which gives a landlord power to enter premises to view their state and condition. I had minor experience of this in the first flat I lived in in London. The landlord with, I am sure, entirely benign intentions used to come in and potter around. I could tell from the grains of coffee left around that he had been there, and on one occasion, he repainted the kitchen, but did not move the towel hanging on the back of the kitchen door and painted around it. That is minor against the issue of a property being fit for human habitation, which is the subject of Section 8 of the 1985 Act.

The landlord has an obligation to keep the property fit for human habitation. Most modern tenancies have a power of entry written into them—a contractual power, if you like—so there is no need for a statutory power, but the British Property Federation, which has raised this point with me, estimates that of the 120,000 or so regulated tenancies, many of which are very old and rely on statutory terms and conditions, something between 18,000 and 24,000 rely on statutory powers of entry. In other words, there is a legal and, I would say, moral obligation on a landlord, but he will have no means to inspect the property and fulfil the obligation. Unlike modern assured shorthold tenancies, these tenancies often encompass some of the oldest parts of the housing stock, from before 1919. They tend not to have turned over frequently and there is a pretty high probability that if they are not kept up to a good standard, they may become unfit.

I know that this matter has been discussed between the Home Office, looking at it from the point of view of the powers of entry, and the Department for Communities and Local Government. I also know that an issue has been raised that because these tenancies are subject to very low rent limits, they would not in fact come within the scope. I want to anticipate that argument by saying—again, I understand this from the British Property Federation—that the rent limits are those that were in the original contract and cannot really be cited now because that is the historical event which brought them within the scope.

The British Property Federation is very clear that the provisions in the 1985 Act are not redundant. It seems that there is a real issue here, where we should not let our enthusiasm for the principle over powers of entry obscure the need to address it. I would be the first to say that this amendment does not address it. I am merely trying to bring the issue into play at this stage—a late stage, I know—and I look forward to hearing what the Minister has to say on this. I suspect that it may be another matter where I am going to add to his diary commitments by suggesting that detailed discussion might benefit us all, but for the moment I beg to move.

[Lord Henley]

My Lords, as my noble friend has explained, the amendment relates to concerns that have recently come to light over the proposed repeal of Section 8(2) of the Landlord and Tenant Act 1985, as provided for in Schedule 2 to the Bill. This provision in the Landlord and Tenant Act grants landlords a power of entry to ensure that their properties are fit for habitation. The Act sets very low rent thresholds for London and elsewhere, which were agreed some considerable time ago. Because those rent levels were so low, it was originally our belief that there were no longer any existing tenancies to which the Section 8(2) power still applied. That being the case, we thought that the power could sensibly be repealed. It has since come to our attention from the same source that my noble friend mentioned, the British Property Federation, that there is a significant number of legacy properties to which this provision continues to apply. The BPF has indicated that there are in fact some 18,000 to 24,000 tenancies where this power of entry would continue to operate.

Landlords have a duty to ensure that the properties they rent are fit for habitation. In the overwhelming majority of cases, we would expect tenants freely to admit the landlord into their property to inspect it. In such cases, landlords have no need to use their statutory power of entry but in isolated cases the tenant may not be co-operative and there is therefore a continued need for this power. While we still intend to repeal this power of entry we propose to introduce a saving provision, using the order-making power in Clause 110, to ensure that the power remains available in respect of existing tenancies. In the case of any new tenancies, a power of entry can be provided for in the tenancy agreement as would normally be the case, as my noble friend will be fully aware as a solicitor. I thank her therefore for raising the matter. I hope that we do not need to have a meeting on this occasion, that she is satisfied by the explanation that I have given and that she will be happy to withdraw her amendment.

[Baroness Hamwee]

My Lords, that is extremely helpful. I wonder if I might chance my arm by asking whether there might be any chance of seeing a draft of the order before we get to the next stage, in case technical concerns continue. I am not sure whether the Minister would want to reply to that. However, in response to his point about tenants allowing a landlord in, there must be many properties where there is more than one unit of accommodation within a house and where one could have one tenant who is entirely reasonable and another who is not and who prejudices the position of other people, potentially quite seriously. I am very grateful for that answer and I hope that it is not necessary to have a meeting. I beg leave to withdraw the amendment.

Amendment 177 withdrawn.

Immigration

Baroness Hamwee Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Henley]

The very simple reason is that some—particularly in the private sector, which is why I referred to private sector colleges—were involved in an abuse. If there is an abuse of the system, we have a duty to tackle it, and that is what we have done.

[Baroness Hamwee]

My Lords, the Minister may be aware of a recent report from the London Chamber of Commerce and Industry entitled Migration Reform: Caps Don’t Fit. It concludes:

“Our research shows that one of the main reasons companies recruit from beyond the EU is their desire to explore and invest in new, overseas markets”.

It also says that, if the UK’s economic recovery is to be export led, this is a particularly important consideration. Does the Minister acknowledge that?

[Lord Henley]

My Lords, I think that I have followed what my noble friend has said. Obviously, we recognise the importance of universities—as I said in response to the question from the noble Lord, Lord Hannay, they are a major part of our exports. However, I also see what my noble friend is getting at. I have not seen the research that she refers to, which talks about the need to bring in workers from outside the EU. However, the point that I was making in my first supplementary answer was that we have a cap on the number of skilled workers, and we have not got anywhere near that cap in the first six months of this year.

Justice: Evidence

Baroness Hamwee Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Henley]

The noble Baroness is absolutely correct. I was not trying to imply any criticism of the group; I was saying that it has put forward a solution that we have found a number of problems with. We will continue to look at any ideas that it puts forward. If we could use intercept as evidence in a manner that was safe and appropriate, we would, but again I stress that we have to get the right balance between advantage, costs and risks.

[Baroness Hamwee]

My Lords, when I heard the Minister’s original Answer I wondered whether it was a case of changing the membership if you do not like what is being said, and in this case I would welcome that. However, does the Minister accept that the longer this goes on, the less trust and confidence there is among those of us who take an interest in this about whether there is a real determination to reach a good and useful outcome?

[Lord Henley]

My Lords, the only reason why the membership changed was because the noble and learned Lord, Lord Archer of Sandwell, stood down due to reasons of health. He has been replaced by Shaun Woodward, and there is nothing else behind that.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Baroness Hamwee Excerpts

Thursday 15th December 2011 Lords Chamber

[Baroness Hamwee]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Baroness Verma]

My Lords, to assist the House I suggest we hear from the Liberal Democrat Benches first, maybe then the Convenor of the Cross Benches, followed by the noble and learned Lord, Lord Falconer, and then the Bishops.

[Baroness Hamwee]

My Lords, we complain when primary legislation is not commenced or implemented. The first instinct of the noble Lord, Lord Alli, was absolutely right, though he then extended his arguments. We also complain when legislation is not clear. This is not the case today. The Merits Committee, of which I am a member, did not make a judgment on the merits of the substance of this order. It used its entirely standard language, drawing it to the special attention of the House on the grounds that,

“it gives rise to issues of public policy likely to be of interest to the House”.

That statement is quite uncontentious.

I can see from those already attempting to intervene that we will hear today closely argued analysis of a construction of the words “Act”, “authority” and “services”, and I am always glad to recruit such expertise to the cause. Essentially, however, the issue is, “Does the order do what Section 202 of the Equality Act provides?”. I believe that it does. Or, “Does it require any individual or organisation to do what they do not wish to do?”. I believe that it does not. The order cannot trump primary legislation, nor can it require what the Act itself precludes. As we have been reminded, primary legislation says that nothing places an obligation on religious organisations to host civil partnerships if they do not wish to do so. If there are differing views within an organisation, that is not a matter for government.

The noble Baroness uses in her prayer the word “pledge”. It is not a pledge—or rather, it is more than a pledge—because the words are in Section 202. That section is surely permissive: it is an opt-in, not an opt-out. We know there are objections to it, but that was a matter for 2010. I say that to those who would like to extend that section, as well as to those who would like to see it interpreted restrictively. To attempt now to reverse it, extend it or block it, is inappropriate.

I will be quick because there are so many noble Lords who wish to speak. I find it very difficult to see anxiety engendered among people with a particular view. I do not like to see people fed fear. I realise that something that may seem entirely reasonable to me may seem very prejudicial to you, whoever you and I are—that is, whichever side of the argument one is on. I will end by voicing what others might see as my own prejudices. That 46,000 couples have entered into civil partnerships is wonderful; 92,000 people have been able to give formal, legal expression to their relationship. It is a paradox that some who advocate celebrating marriage within a faith oppose extending it to other stable relationships. I welcome the order and look forward to taking forward Section 202.

[Lord Falconer of Thoroton]

My Lords, I speak as a lawyer today. I concede my obligation to the House to set out my genuine view, because this is a legal issue and because I was formerly the Lord Chancellor. The noble Baroness, Lady O’Cathain, and the noble Lord, Lord Alli, agree the basis upon which Parliament—not only this House—passed the amendment to the Civil Partnership Act which abolished the prohibition on civil partnerships being registered in places of religious worship. My noble friend Lord Alli said at the time that there was no disagreement about this.

From the outset I want to make very clear that the amendment does not place any obligation on any religious organisations to host civil partnerships in their buildings. We made that clear by including in the amendment the words:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host Civil Partnerships if they do not wish to do so”.

There is no doubt that that was the basis on which the provision was passed. If we have not given effect to that provision, we should not agree to these regulations. The only issue today is therefore whether as a matter of law we have given effect to it. It is for the House to make a decision about this. It is always possible to find a lawyer who says that something is arguable. It is for us to go through the provisions today and form a view about whether or not, contrary to our intention and to that of the House of Commons, we have somehow failed to achieve it.

I will very quickly go through the basic provisions so that we arrive at a clear answer. Section 2 of the Civil Partnership Act makes the moment at which a civil partnership occurs the moment at which the two partners sign the civil partnership document. Section 6 of the Act—this is, before the amendment—says that that signing can take place either at a registry office or at approved premises. It sets out provisions for premises to be approved by somebody called the registration authority. The registration authority is the local authority. The Civil Partnership Act gives the local authority discretion over whether or not they register premises. Section 6 of the Act as originally passed says that civil partnerships cannot be registered at religious premises. Section 2(5) says—and this provision remains—that there should be no religious element in relation to any registration of a civil partnership.

The amendment of the noble Lord, Lord Alli, which was supported by Parliament, did two things. First, it removed the prohibition on religious premises being used for civil partnerships. It retained the approval process, so that local authorities still approve whether premises—including religious premises—can be used for civil partnerships. Secondly, it added to the Civil Partnership Act words to the effect that for the avoidance of doubt, this does not compel any religious organisation to host a civil partnership ceremony if they do not want to.

That is the legal framework that we now have to look at. On the basis of that legal framework, my initial conclusion is that Parliament has made its intention absolutely clear: Parliament does not want to compel anybody to host registration of civil partnerships unless they want to.

I wondered what could conceivably be the argument that we have failed to express our intention clearly. I have read the two opinions that have been provided on this. I will do my best to summarise them fairly and set out why they are plainly wrong, although not lacking in bona fides. The first argument, which was advanced by Professor Mark Hill QC in his opinion dated 8 November, is that because the regulations say that—for the avoidance of doubt—the law does not compel anybody to host a civil partnership if they do not want to, the regulations saying it would not, alone, be enough. I completely agree with that. A regulation saying that hosting is not required would have no effect at all if the position was that the primary Act of Parliament did not get rid of the risk of any discriminatory legislation. However, the primary Act of Parliament does contain the prohibition, so it seems clear that Professor Hill is wrong about that.

I looked through Professor Hill’s opinion to find out what he said about the main provision in the Act, which appeared to be the critical provision. He said that Section 202, in referring to an Act, refers to the Civil Partnership Act and not to the Equality Act. I found that wholly unconvincing because the risk which the noble Baroness, Lady O’Cathain, and the QCs identify is that there are provisions in the Equality Act, except for the purpose of this argument, that might be said to create a risk of some sort of action arising from the fact that you perform civil partnerships but not marriages, or the other way round. It seems to me beyond argument that the intention of Parliament must have been to get rid of that risk by putting in the very same Act the phrase,

“For the avoidance of doubt, nothing in this Act”,

gives rise to the risk of any compulsion. For Professor Hill’s opinion to be correct, you have to assume that this House and the Commons were unaware of the risk that the Equality Act could give rise to litigation when they put into the very same Act a statement that said that allowing churches to host civil partnerships does not lead to any church being compelled to host one. I cannot think of a judge who would give effect to such a nonsensical argument.

8 November was the date on which the advice of Professor Mark Hill was obtained. His advice came under some legal attack. Noble Lords will know that the legal advisers of the Roman Catholic Church, the Church of England, the Home Office and the Equality Commission have all said that there is no legal risk. Reinforcement was obtained from Mr Aidan O’Neill QC. I am very grateful to the noble Baroness, Lady O’Cathain, for providing a copy of his advice. He gives a lot of ground in relation to it, recognising the difficulty that exists.

Protection of Freedoms Bill

Baroness Hamwee Excerpts

Thursday 15th December 2011 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I apologise in advance for a singularly technical group of amendments, but they need to be explained, if only so that Hansard can show to those who are not here why they have been put forward. They are inescapably dry, not to say turgid. This group contains Amendments 116 to 119, which amend Clause 37, and Amendment 132 which, via the Bill, makes four amendments to Section 22 of the Regulation of Investigatory Powers Act 2000.

Clause 37 incorporates new Section 23A into RIPA 2000, thus extending the cases when judicial approval has to be obtained for surveillance. It is a clause that is to be welcomed, as indeed is the Bill as a whole. Amendments 116 to 119 to new Section 23A are drafting ones, but having suffered from unnecessarily obscure wording during the original passage of RIPA, where I led for these Benches, it still remains one of the most complex statutes there is. I hope that the Committee will think that the amendments are worth while.

Amendments 117 and 118 delete what I think are superfluous phrases from Clause 37, the phrases being, “if any” in subsection (2) and “as the case may be”, which appears later in that subsection. Superfluity of language is to be avoided.

Amendments 116 to 119 to the same new clause rectify what seems to me to be a clear error of drafting. I may say that putting together this Bill must have taxed the drafting skills of parliamentary draftsmen to the limit, and one can hardly be surprised if there is the occasional wrinkle. Amendments 116 and 119 address a confusion repeated in new Section 23A. It distinguishes authorisations under Section 22(3), (3B) and (3F) of RIPA from notices required under Section 22(4) of RIPA. Broadly, authorisations allow surveillance to take place whether or not subject to judicial approval, whereas notices are mandatory and require postal or telecommunications operators to disclose data. Both authorisations and notices, which are distinguished throughout both RIPA and this Bill, can be renewed but they are renewable under different provisions in RIPA 2000 and in this Bill.

However, new Section 23A, set out in Clause 37 of the Bill, states in subsections (1) and (3) that the renewal of authorisations is derived from the same sections as the grant of the same. My Amendments 115 and 119 would rectify that by making it clear that renewals are made under subsections (5) and (6) of Section 23 of RIPA 2000. I am not now entirely sure, on rereading my amendments, that reference to Section 23(6) in Amendment 119 is appropriate, but the Minister will soon tell me. It is rather a lot to ask him to have a view on these arcane matters on the instant.

Amendment 122 contains four amendments to Section 22 of RIPA, which will be incorporated through this Bill. Subsection (1) of Section 22 of RIPA gives the context within which breaches of privacy so as to disclose communications data shall be permissible. At the moment, it says:

“This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data”.

Perhaps we tried when the Bill was passed to insert “reasonably” before “believes”. However, it is never too late and my first change to Section 22 would achieve just that. It seems obvious and follows the general tenor of this Bill that the belief of the designated person should be reasonably arrived at.

The third change in my Amendment 122 to subsection (5) of Section 22 again seems to me obvious: namely, that a lazy or perverse belief on the part of any official should not be sufficient to trigger the authorisations permissible under this important but necessary invasion of citizen privacy.

The second change of my four is to subsection (3) of Section 22 of RIPA 2000, which, as it stands, appears to allow a designated person in effect to delegate his or her power of authorisation to,

“persons holding offices, ranks or positions with the same relevant public authority as the designated person to engage in any conduct to which this Chapter applies”.

Unless my interpretation of this subsection in RIPA is misconceived, this less-than-clear wording would allow a designated person, whose designation has to be prescribed by the Secretary of State by order under Section 25, to delegate under Section 22(3) to persons in the same public authority of any office, rank or position inferior to that of the person making the delegation. Again, in common sense, that cannot be right; hence my insertion of “comparable” so that the delegation by an official under Section 22(3) must be to a person of comparable rank or position.

Lastly—noble Lords will be glad to know that I am coming to the end of this exciting oration—the fourth amendment in my Amendment 122 harks back to the earlier ones in this group. It would change subsection (4)(b) of Section 23 of RIPA by removing “authorise or”, since those words relate to authorisations whereas subsection (4)(b) is exclusively concerned with notices, which, as I have explained, are not permissive but mandatory, and require—that is the relevant word—this or that from the postal or telecommunications operator to which the requirement is addressed.

I am sorry to have taxed the patience of the Committee with these somewhat obscure points but I believe that these amendments would improve the Bill. I beg to move.

[Baroness Hamwee]

My noble friend may not like this question, but we are all family here, are we not? I absolutely agree that one needs a good supply of hot towels when reading this Act. Almost the last point he made was about his Amendment 122, which draws attention to Section 22(3), granting authorisation “for persons holding”—he would like to say comparable—“offices”. I read that as meaning that if you are designated to grant authorisation, you can allow a colleague, whether or not of the same seniority, to engage in the conduct that is referred to in Section 21. What that seems to be doing is saying that the designated person is in a position to grant authorisation, but it is perfectly okay to grant it within his own authority and that the conduct referred to in Section 21 does not mean delegating or granting authorisation to a third party. I am sorry if I have added to the need for hot towels.

[Lord Phillips of Sudbury]

I am not perfectly sure that I understood my noble friend’s point. I think she is talking about comparability.

[Baroness Hamwee]

I am asking what the conduct is.

[Lord Phillips of Sudbury]

Yes. The reason I think that Section 22(3) of RIPA is wrong is that it does not make any requirement, as I see it, as to the rank or the position of the person to whom any delegation is made by the person originally designated under very carefully confined powers. As my noble friend pointed out, the definition of a designated person involves the Secretary of State making the designation, but when in Section 22(3) a delegation is in effect made, there is no such requirement. Where it refers to the same relevant public authority, that is fine. The person to whom delegation is made has got to be someone else in the same relevant public authority, but there is no requirement as to what rank that person is.

[Baroness Hamwee]

My Lords, my point was that I do not think this is about delegation of authority. I think it is about authorising the conduct which, were it to be proposed to be undertaken by someone in a different organisation, would require authorisation.

[Lord Phillips of Sudbury]

My Lords, my noble friend may be right. We disagree, as things stand, as to the meaning of Section 22(3) which, I think she will readily agree, is obscurely worded.

--- Later in debate ---

Moved by

[Baroness Hamwee]

124: Clause 38, page 29, line 44, at end insert—
“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

[Baroness Hamwee]

My Lords, I think I need to take my noble friend Lord Phillips of Sudbury aside to explain that whisky may dull the pain but caffeine keeps one on the job better.

[Lord Phillips of Sudbury]

Speak for yourself.

[Baroness Hamwee]

I do speak for myself. I hope Amendment 124, at any rate in the drafting, is a little more straightforward. I declare an interest as one of a number of vice presidents of the Chartered Institute of Environmental Health, from which this amendment comes. The amendment is concerned with environmental health and, in particular, with noise.

There has been, I understand, a long-running issue as to whether the investigation of noise nuisance requires covert surveillance. It is not the Home Office but in fact Defra which has mainly been concerned with this. Environmental health officers listen to noise in its context and record, one of the technical terms, anything listened to which brings—as I understand it since it is as the institute understands it—what it does within the meaning of Section 26(9) of RIPA. The Home Office takes the view that dealing with noise nuisance does not ordinarily require covert surveillance and so it is not caught by RIPA. Perhaps this amendment covers it if and when it does. Therefore this amendment is a probing one. The institute is generally in support of the need for judicial authorisation but so far as its work is concerned in this area there are some difficulties.

As this has been long running, it is able to anticipate the arguments that may be made against the need for such an amendment so I am going to start with the response and then its response to each of the Home Office’s likely responses. The first is that surveillance follows complaints so quickly that obtaining authorisation would not be reasonably practicable and that this excuses the need for authorisation. The institute says that the exception is when surveillance is undertaken as an “immediate response”, such as when a police officer sights a suspect in the street. There is always going to be a delay between the making of the noise complaint and its investigation. Secondly, if local authorities warn noise perpetrators that they may be monitored surveillance following that will not be covert and so will not be caught by RIPA.

Giving a warning causes delay. It rather undermines the duty on local authorities under the Environmental Protection Act to investigate complaints and quite obviously it would tend to be self-defeating. I dare say many noble Lords will have experienced complaint in different contexts to noise or what they may perceive as noise. I perceive muzak as noise. I have often asked for it to be turned down. It is turned down temporarily in a place of entertainment and up it goes again. Thirdly, if local authorities warn noise perpetrators that they may be monitored, again surveillance will not be covert and so not caught. I beg your pardon. I should have said that giving a warning takes the investigation out of RIPA and the measurement of sound pressure levels does not require authorisation. But there is no numerical standard for noise nuisance because environmental health officers have to judge the noise in context. Depending on what else is going on, the noise may or may not be intrusive, and for evidential purposes it is accepted practice to record it.

Fourthly, private information is unlikely to be obtained because perpetrators have no right of privacy to information that is audible outside the premises it is coming from. However, the institute draws attention to the definition in RIPA of “private information” by reference to its content as distinct from its audibility. Fifthly, surveillance carried out without authorisation is not necessarily unlawful. That is the case where there is an equivalent process of authorisation in another statute, but that does not apply in this case. Lastly, the whole thrust of this part of the Bill is the protection of magistrates’ approval against unjustified snooping by local authorities, and both I and the institute have sympathy with that. The Home Office has confirmed in Answer to a parliamentary Question in another place that there is no evidence to suggest that noise investigations are being carried out inappropriately by local authorities. We have read of instances where local authorities have rather overstepped the mark in their use of the powers, but this is not one of those examples.

In the hope that I have not taken too much of the Minister’s speech in anticipation of the answer, I beg to move.

[Baroness Stowell of Beeston]

My Lords, I thank my noble friend for her introduction to the amendment, and indeed she has anticipated quite a lot of what I will say in response. None the less, there are some things that are worth emphasising, and I hope that in doing so I can give her some assurances. I certainly agree that noise nuisance is something that is clearly intolerable to the person experiencing it and that in many instances the noise under investigation may occur at night, so anyone who is subject to that kind of disturbance feels strongly about the situation they find themselves in and wants any action to deal with it to be rapid. However, Amendment 124 is unnecessary because the sort of noise we are talking about, that which causes disturbance and affects people’s lives, is not caught by RIPA.

Before I go on to cover some of the topics raised by my noble friend, let me say that Home Office officials have already met representatives of the Chartered Institute of Environmental Health and of Defra to discuss these points. We have said that we shall work with them on revising the RIPA code of practice on covert surveillance in order to make it clear that authorisation under RIPA is unlikely to be necessary for noise abatement reasons. Surveillance conducted and governed under RIPA relates to private information only. It requires that when public authorities obtain private information covertly, they do so only when it is necessary and proportionate, in line with our right to privacy. However, the privacy implications of someone making a loud noise will usually be such that RIPA is not engaged. Loud machinery, alarms or music, for instance, are not private information, and if the noise emanating from someone’s house because of, say, an argument is so loud that it can be heard in the street outside or the adjoining property, it is highly questionable whether the people concerned have a realistic expectation of privacy. If the noise involves violent or threatening behaviour, then it would always be appropriate to call for the police.

If the council’s policy is to serve an abatement notice warning that monitoring may be carried out, then that monitoring cannot be deemed to be covert in nature, which my noble friend has already anticipated. In these scenarios, a RIPA authorisation would not be required. This is made clear in the RIPA covert surveillance code of practice; that code has statutory force.

The only instance where a RIPA authorisation definitely would be required is where a local authority noise monitoring device was calibrated to boost the signal so as to record conversations which could not be heard outside the property with the naked ear. However, this would constitute intrusive surveillance and RIPA does not permit local authorities to do this. Most people would agree that this would be an unwarranted breach of someone’s privacy. I therefore maintain that local authority noise monitoring would not normally require to be authorised under RIPA; that this is already made clear in RIPA; and that it therefore would not be subject to prior magistrate approval. However, as I say, we are meeting with the Chartered Institute of Environmental Health and Defra to look at the code of practice. Before I ask my noble friend to consider withdrawing her amendment, I wish to reinforce the Government’s view that noise disturbance of the kind she describes is an important matter. However, I do not think that her amendment is necessary.

[Baroness Hamwee]

My Lords, I agree that very often in the sort of situation about which the noble Baroness and I are talking, any conversations which take place are not very edifying or instructive—“indiscreet” might be the term for them. I live fairly near a pub so that is why I make that comment. I have learnt a lot of bad language over the years as I have heard it in the very late hours.

I welcome what the noble Baroness says about the possible revision to the code of practice, but I am concerned that if the legislation requires authorisation the code of practice cannot undo that requirement. However, I will read what she has said and discuss it with the institute. I beg leave to withdraw the amendment.

Amendment 124 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

129: After Clause 38, insert the following new Clause—
“Matters subject to legal privilegeInvestigatory powers: legal privilege
(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—
“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege. (8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(9) The Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—
“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.
(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(12) The Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(13) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.”(3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—
“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—
(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—
(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—
(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) and (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.
(9) The Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, for the purpose of subsection (7) or (8), anything is done with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.””

[Baroness Hamwee]

My Lords, this amendment was suggested to me and drafted by the Bar Council. Although it looks long and a bit daunting, I hope the Committee will understand that the point which it addresses concerns a simple point of principle, and the practice of that principle. The principle is the need to protect legal professional privilege. The Bar Council is seriously concerned that RIPA violates legal professional privilege by permitting authorities secretly to obtain information about privileged communications, in particular private meetings and other communications between a lawyer and a client. I was pleased to be asked to table this amendment as I feel very strongly that a lawyer and his client should be able to speak freely, and that the lawyer should be able to take instructions without fear of them being listened to.

The right of someone in custody to a private consultation with a lawyer is expressly protected by the Police and Criminal Evidence Act 1984. The importance of an accused person being able to confer with his lawyer in private has also been emphasised in numerous cases under the ECHR. Indeed, it has been said that it is a fundamental condition on which the administration of justice rests.

The need for reform of RIPA was revealed by a case in 2009, In Re McE, when the House of Lords held that Part II of RIPA permits the covert surveillance of meetings between defendants and their lawyers. Noble Lords will be aware of recent high-profile cases involving CHIS—covert human intelligence sources— that have emphasised the need for privilege to be protected expressly; for example, the case of the undercover police officers, PC Mark Kennedy and DC Jim Boyling, infiltrating protest groups pursuant to RIPA authorisations. The Government’s partial response to In Re McE was to make two orders and two codes of practice under powers contained in the Act, one relating to directed surveillance and the other to covert human intelligence sources, which altered the authorisation procedures, but these do not address the fundamental problem.

We have already referred to the complexity of RIPA. The new clause has been carefully drafted—I am happy to say not by me—to ensure that covert powers of investigation cannot be used to target legally privileged information, while at the same time ensuring that privilege is not abused for a criminal purpose and that the regime caters for a position where it turns out that the privileged material has been acquired accidentally. The provisions would prevent the targeting of legally privileged material. The draft clause uses the code of conduct as a vehicle for guidance on minimising the risk of accidentally obtaining privileged material.

What I understand is called in the trade the “iniquity exception” has been reduced in scope. The Police Act 1997 takes matters out of privilege if the item or communication is,

“in the possession of a person who is not entitled to possession of them”

or is held or made,

“with the intention of furthering a criminal purpose”.

The Bar Council points out that the first of these exceptions would be counterproductive but it has reduced the scope rather than simply taking out the exception, which would perpetuate the problem that it is seeking to deal with. The wording in subsection (6) of the draft clause defining what cannot be targeted by a CHIS is borrowed directly from one of the 2010 orders made following the case to which I referred.

The provision about surveillance is based on evidence from solicitors that legal consultation involving protests or other multiple-defendant situations often take place in private premises—noble Lords will remember that one of the recent examples was of protesters at a power station whose group had been infiltrated by a police officer—and this amendment covers premises in so far as they are used for legal consultations. The other of the 2010 orders to which I have referred makes specific provision for targeting any place in use for legal consultations—in other words, it limits the premises and therefore limits the scope of the order. The definition of legal consultations that has been used is, however, very similar to that used in the order that is already in force.

It is a long amendment but, as I say, at the heart of it is a simple but very important proposition. I beg to move.

[Lord Scott of Foscote]

My Lords, I am in general sympathy with the objective behind this amendment but have some anxieties about the effect of subsections (9) and (12), which mirror one another in similar language. They seem to say that the question of whether a communication has been made with the intention of furthering a criminal purpose is to be determined in accordance with regulations or provisions made by the Secretary of State. Whether a particular communication is protected by privilege or that privilege is forfeited because the purpose of the communication was to further a criminal purpose is the sort of issue that could easily come up in legal proceedings before an ordinary court. On this notion that the Secretary of State could pre-empt that, I note the language,

“make provision for the determination (on an application for an”—

interception warrant, which I can understand—

“or otherwise)”.

That “or otherwise” seems to carry the power right through to legal proceedings where the question of privilege is an issue. I would like some elucidation on the intention behind these two subsections.

--- Later in debate ---

[Baroness Stowell of Beeston]

My Lords, I will endeavour to respond as comprehensively as I can to the issues raised in this short debate. I appreciate the concerns raised by the Bar Council but your Lordships will understand that no one can regard themselves as beyond the law or immune from investigation or prosecution. Nevertheless, RIPA recognises the special relationship between a lawyer and client, and puts in place special protections for any covert obtaining of material subject to legal and professional privilege.

RIPA already limits obtaining legally privileged material to intelligence and law enforcement agencies investigating serious crime or acting in the interests of national security. In each case, whether it is interception or surveillance, internal authorisation is by senior official—for instance, the director-general of the Security Service or a chief constable. In addition, and crucially, this is then subject to external independent approval, either by the Secretary of State or a surveillance commissioner, before any covert action can be taken.

The RIPA codes of practice, which have statutory force, provide further safeguards. The interception code makes it clear that where communications which include legally privileged communications have been intercepted and retained, or where the subject of the interception is to be a lawyer, the matter should be reported to the Interception of Communications Commissioner during his inspections and the material be made available to him, if requested.

In addition to safeguards governing the handling and retention of intercept material as provided for in Section 15 of the Act, caseworkers who examine intercepted communications should be alert to any intercept material which may be subject to legal privilege. Where there is doubt as to whether the communications are subject to legal privilege, advice should be sought from a legal adviser within the intercepting agency. Similar advice should also be sought where there is doubt over whether communications are not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The covert surveillance and covert human intelligence source codes make it clear that such independent external approvals will be granted only where there are exceptional and compelling circumstances that make the authorisation necessary—for instance, where there is a threat to life or limb or to national security.

My noble friend Lady Hamwee and the noble Lord, Lord Rosser, have already made reference to the McE case. In 2009, the former Judicial Committee of your Lordships’ House ruled in that case that RIPA could be used to authorise the covert surveillance of legally privileged consultations but that this needed to be subject to an enhanced approval process. The enhanced RIPA safeguards were tested in the case of RA v Chief Constable of the Police Service of Northern Ireland where the High Court of Northern Ireland ruled that the RIPA regime was lawful and provided sufficient safeguards against abuse. To be clear, those new safeguards have been tested in a court of law and were found to be robust.

In reference to the comments made by the noble and learned Lord, Lord Scott, about the amendment put forward by my noble friend Lady Hamwee, I will of course leave my noble friend to respond to him. Given these existing stringent limitations and safeguards on public authorities obtaining legally privileged material under RIPA, and the fact they have been tested in court, as I have said, and have been found to be robust, I would suggest to my noble friend that this amendment is unnecessary and I invite her to withdraw it.

[Baroness Hamwee]

My Lords, this being Grand Committee, of course I will withdraw the amendment. The noble Baroness’s reference to the role of the commissioner and some other comments seem to be steps taken to deal with the issue after the horse has bolted. But I will read her comments carefully. The point that no one is immune from prosecution is not something with which I seek to argue. It is a parallel but different point.

The noble and learned Lord, Lord Scott, make a very interesting point about regulations made by the Secretary of State. I did not mean to disclaim responsibility for drafting the amendment; I meant to give credit to others. But I did not draft it and I do not think that it would be right for me to attempt to respond in any detail at this point. The noble and learned Lord set me an interesting dilemma and I shall think about it after today’s Committee Sitting to consider how one might address it.

I do not believe that the Bar Council would have gone to the effort of dealing with a matter about which the current Lord Chief Justice has himself expressed disquiet had it felt that an amendment was not necessary, so I will be talking to the council between now and the next stage. Other noble Lords have asked if there might be a meeting to discuss a number of issues, and this is one that will be particularly amenable to some further discussion, if that is possible. I do want to imply anything as regards the noble Baroness, but for myself this is pretty much above my pay grade. I beg leave to withdraw the amendment.

Amendment 129 withdrawn.