Serious Crime Bill [HL]

Baroness Williams of Trafford Excerpts

Tuesday 28th October 2014 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I am grateful to noble Lords who have spoken in this debate—in particular to the noble Baroness, Lady Smith, for setting out just what we mean by female genital mutilation and asking, as a supplementary, whether the current definition of FGM includes wider elements such as reinfibulation. I will deal with that point first. I confirm that the Government’s view is that reinfibulation is an offence under the 2003 Act. That is on the basis that if it is an offence to infibulate in the first place, it must equally be an offence to reinfibulate. The multiagency practice guidelines on FGM have long made clear that resuturing or reinfibulation is illegal in the UK. Current guidance issued by both the BMA and the Royal College of Nursing supports that view.

As we heard in Committee, the whole House shares an abhorrence of the practice of FGM and we can all agree that more needs to be done to stop such violence against women and girls. There are nuances on how best to tackle such abuse, but we all agree on the principle: FGM must end, and this Government are committed to ending it.

I will comment on the right reverend Prelate’s point about the cultural aspect, which adds strength to the argument. I totally share his view. At the Girl Summit in July this year, the Prime Minister and Home Secretary announced an unprecedented package of measures to tackle FGM in this country. This included a number of commitments to strengthen the law. To that end, this group of amendments includes a number of government amendments designed to ensure that our legislative response is as strong as possible. In particular, they will provide for lifelong anonymity for the victims of FGM, introduce a new civil order to help protect those at risk of mutilation, and create a new offence of failure to prevent FGM. I propose to say a little more about each of these new provisions.

On the subject of victim anonymity, the noble Lord, Lord Rosser, moved an amendment in Committee to extend to victims of female genital mutilation the same anonymity that already applies to victims of many sexual offences. This followed a recommendation by the Director of Public Prosecutions, and I was then able to indicate in response to that debate that the Government were giving sympathetic consideration to the proposal. As many in this House will have seen at the Girl Summit on 22 July, the Home Secretary announced that the Government would bring forward legislation to this end. Amendments 46A and 46B deliver on that commitment. These amendments will give victims of female genital mutilation the benefit of anonymity, as already applies to the alleged victims of many sexual offences under the provisions of the Sexual Offences (Amendment) Act 1992. Any publication of material that could lead members of the public to identify a person as the alleged victim of an offence will be prohibited. Anonymity should not end where the online world begins; publication would include traditional print media, broadcasting and social media.

Female genital mutilation is an offence of a particularly personal and sensitive nature. Without the prospect of anonymity, victims may be discouraged from reporting such an intimate offence to the police. Granting lifelong anonymity, therefore, will reassure victims that their identity will be protected and will go far to encourage the reporting of this offence. This protection needs to be automatic rather than discretionary; it must apply from the outset, when an allegation is first made, rather than from the point of charge; and it must last for the duration of that person’s lifetime. That is exactly what these amendments will bring about.

My noble friend Lady Hamwee has a couple of amendments to government Amendment 46B. They are far from being the minnows that she described. Amendment 46C seeks to amend paragraph 1(5) of new Schedule 1, which sets out the first condition that must be met in order to lift the restriction on anonymity. This allows a court to remove the anonymity that attaches to an alleged victim of an FGM offence where the anonymity results in the defendant’s case being “substantially prejudiced”. This wording is directly comparable to the provisions in the Sexual Offences (Amendment) Act 1992. We do not think that making a distinction between the two provisions would be helpful when both seek to achieve the same outcome.

Amendment 46D would lower the test for disapplying the reporting restrictions. We do not believe that this change provides sufficient protection for the alleged victim’s anonymity. Again, we have applied the two-pronged test that applies under the 1992 Act. By changing the test in this instance, the courts could well be more ready to lift the reporting restrictions as they apply to an FGM victim, thereby undermining the protection we are seeking to afford such victims.

Government Amendment 46G provides for FGM protection orders. It has been tabled in response to concerns that currently there is no specific civil remedy for the purpose of protecting potential or actual victims of FGM. The noble Lord, Lord Lester of Herne Hill, made that point. The majority of responses to a recent consultation on a proposal to introduce a civil protection order for FGM supported the proposal for such an order, so as to protect potential victims and victims of FGM. The Government strongly believe that there should be a specific civil remedy to strengthen protection for potential victims of FGM and to help to prevent FGM from occurring in the first place. Amendment 46G aims to achieve this.

The provisions on FGM protection orders follow closely the model of forced marriage protection orders provided for in Part 4A of the Family Law Act 1996, with some modification to reflect the different nature of FGM offences. The new Schedule 2 to the 2003 Act contains a number of detailed provisions. I do not intend to go through each one but will focus on the key features.

As with forced marriage protection orders, an FGM protection order may contain such prohibitions, restrictions or other requirements as the court considers appropriate for the purposes of that order: that is, for the purposes of protecting a girl against commission of an FGM offence or a girl against whom any such offence has been committed. This could include, for example, provisions to surrender a person’s passport or any other travel document and not to enter into any arrangements, in the UK or abroad, for FGM to be performed on the person to be protected.

Application for an FGM protection order may be made by the person to be protected, the victim or a relevant third party, without leave of the court or any person with the leave of the court. This would clearly allow a wide category of persons to apply for an FGM protection order, which I believe is desirable. In particular, allowing a third party to apply for a protection order on behalf of a victim may be helpful in situations where the victim is unable to do so, for example because she is too young—it is clear that most victims of FGM are girls typically between the ages of five and eight—or because she is too scared to take such an action herself. It will also be open to a criminal court to make an FGM protection order on its own initiative, for example when sentencing a person for an offence under the 2003 Act.

Breach of an order would be a criminal offence with a maximum penalty of five years’ imprisonment, but with provision, as an alternative, for a breach to be dealt with in the civil court as contempt punishable by up to two years’ imprisonment.

The noble Baroness, Lady Smith, questioned whether putting FGM protection order provisions in the FGM Act 2003 undermines the court’s powers, compared to putting them in the Family Law Act 1996. We do not think that that is so. The proceedings would be in the family court, with the full range of powers of the court, and expressly without prejudice to any other protective powers that the court may have. The location of the provisions does not affect this. Indeed, it would be helpful to practitioners to have all FGM-related provisions in one statute. The noble and learned Baroness, Lady Butler-Sloss, made that point. She also stressed the point about the proceedings going to the family court. I point noble Lords to paragraph 17(1) of new Schedule 2, which makes it clear that the proceedings are in the family court.

The noble Baroness, Lady Smith, also asked whether there would be a bespoke FGM unit, akin to the Forced Marriage Unit. I can confirm that the Government will set up a specialist FGM unit to drive a step change in this very important outreach service, with partners.

The right reverend Prelate the Bishop of Rochester made a point about the provision in the Opposition’s proposed new Section 63T that it is immaterial whether any person believes that the operation is required as a matter of custom or ritual. The provision in question is already set out in Section 1(5) of the Female Genital Mutilation Act 2003 and is applied by paragraph 17(1) of new Schedule 2 in the government amendment.

These government amendments, which provide for victim anonymity and FGM protection orders, have substantially the same effect as Amendments 44 and 44A put forward by the noble Baroness, Lady Smith. I trust, therefore, that she will be ready to support them in lieu of her own.

Amendment 46E provides for the last of the three new government measures. It will create a new offence of failing to protect a girl from the risk of genital mutilation. Again, this new offence gives effect to a recommendation by the Director of Public Prosecutions for the law to place a positive duty on parents or carers to prevent their children being mutilated. English criminal law does not generally criminalise a failure to prevent an offence. This new offence is unusual but, I think, entirely necessary.

In the context of FGM this approach is justified given the difficulties that have been experienced in bringing prosecutions under the existing law. Even if those who allow their daughters to undergo FGM believe that it is in the girl’s best interests to conform to the prevailing custom of their community, there can be no excuse for such a gross violation of their human rights. It is wholly unacceptable to allow a practice that can have such devastating consequences for the health of a young girl. The physical and psychological effects can last throughout her life.

The amendment provides that if an FGM offence—that is, one of the offences set out in Sections 1 to 3 of the 2003 Act—is committed against a girl under the age of 16, each person who is responsible for the girl at the relevant time will be guilty of an offence. My noble friend Lady Hamwee queried why this offence applies only to girls under the age of 16 whereas the existing FGM offences apply to girls and women of any age. We recognise that parental responsibility can be exercised in relation to a girl under the age of 18. However, in the context of FGM where, as I have said, victims are typically aged between five and eight, and given the diminishing control that a parent would have over a 16 or 17 year-old, let alone an older woman, we believe that the offence should apply where FGM has been committed on a girl under the age of 16.

The maximum penalty for the new offence will be seven years’ imprisonment or a fine or both. We believe that this is proportionate when it is considered against the maximum penalties for offences of violence, and bearing in mind that this is an offence of failure to protect rather than of directly perpetrating violence. My noble friend Lady Hamwee also raised a couple of points on the new offence. The offence has been carefully drawn to avoid criminalising people unnecessarily or unjustifiably, so the requirement for frequent contact is intended to ensure that a person who in law has parental responsibility for a girl but who in practice has little or no contact with her would not be caught under this provision. The courts have held that what constitutes frequent contact is a simple question of fact which does not require further elucidation or definition.

On the question of how the new offence applies to children in care, the Children Act 1989 refers to people who have care of the child. This seems to us to be too broad a category to make liable for the new offence. Instead, new Section 3A(4) makes liable, in addition to those who have parental responsibility and frequent contact, the more specific category of those “aged 18 or over”, who have current responsibility for,

“caring for the girl in the manner of a parent”.

The new offence is not a panacea for the long-standing difficulties in prosecuting FGM, but it will help to overcome some of the barriers to prosecution, in particular by reducing if not avoiding the need for a girl to give evidence or to identify who actually performed FGM on her. In so doing, it will enable the Crown Prosecution Service to bring prosecutions in cases where they could not have been brought before. At the request of the Northern Ireland Minister of Justice, David Ford, this new offence, and indeed the other two new provisions, will extend to Northern Ireland as well as to England and Wales. The other government amendments in this group are consequential on the three substantive new provisions.

[Lord Lester of Herne Hill]

Everything that the Minister has said is music to my ears, and I congratulate her and the Government. However, she has just mentioned Northern Ireland and that provokes in my mind the question about what happens beyond England, Wales and Northern Ireland. What will be the position if someone goes to Scotland or to another country? The same problem arises with forced marriage. Will the Government take steps to try to persuade other jurisdictions to collaborate, if necessary by amending their laws, so that when people move from this country to carry out this vile procedure, it can apply not only to England, Wales and Northern Ireland?

[Baroness Williams of Trafford]

I thank my noble friend for bringing up that point. In actual fact, Scotland has very strong provisions in this area, and in a certain sense we are catching up, so I hope that answers his questions.

[Lord Lester of Herne Hill]

Sorry, I said not only Scotland but any other country. Scotland sounds as though it is fine. But what happens with any other part of Europe or the Commonwealth?

[Baroness Williams of Trafford]

I apologise to my noble friend. I am sure that if other countries or jurisdictions want to take on our legislation, that would not be a problem. I will confirm that with the noble Lord in a letter and also put a copy of that letter in the Library, but I assume that to be the case.

I have been on my feet for some time, but I hope that I have set out in a little detail the effect of the government amendments. I am grateful to the House for bearing with me and commend the government amendments to the House.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Baroness. She need not apologise for having been on her feet for a long time, as she did as much as she could to address the many issues which were raised in the debate.

On the issue of FGM protection orders, I think there is not a cigarette paper between us on what we are trying to achieve. However, I still do not fully understand—I am not a lawyer, but even the noble Lord, Lord Lester, could not help me out on this one—why the Government have chosen this approach and not the family law approach. That is the other point. I will look again in Hansard to see what she said, but given the comments that have been made around the House, I thought there was a willingness from the noble Baroness and from others for the Government to talk to us and say, “Have we got it right? Can we look at this?”.

[Baroness Williams of Trafford]

I thank the noble Baroness, and I think there is a further conversation to be had, perhaps outside the Chamber. I am very willing to engage with her and other noble Lords who may wish to meet with me before Third Reading.

[Baroness Smith of Basildon]

I am grateful to the noble Baroness for that, because we just want to get it right. On the basis that she is prepared to discuss it and bring something back at Third Reading, we will be happy to withdraw our amendment. I am grateful and I appreciate that.

However, I must express my disappointment with her comment around the legal definition. I was unusually —and somewhat, I would say, embarrassingly—graphic about what reinfibulation actually means. I know that the Government believe that it is covered in law, and I said that in my comments. We believed that we covered reinfibulation when we brought in the law in 2003, but the evidence is that it is not. If the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that it is not covered, we have to accept that there is a lack of clarity and there is some doubt. With the best will in the world, the noble Baroness saying to me that the Government believe that it is covered is not good enough. I ask her whether, on the same basis, she would be prepared to look at this and discuss this with us.

[Baroness Williams of Trafford]

Certainly.

[Baroness Smith of Basildon]

I am extremely grateful. On both those issues, therefore, we would be happy not to press our amendments on the basis of further discussion before Third Reading.

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[Baroness Smith of Basildon]

It could be argued that that was a considerable clarification. I am grateful to the noble Baroness.

If the Minister’s Bill team does not believe that this addresses the problem, and we in your Lordships’ House all understand what the problem is, can we look at it again? The Minister has been very good and I greatly appreciate her co-operation. We can have discussions before Third Reading and full debates in the other place as well. This is the only opportunity, as we will not have another Bill on this in the short term. We have an opportunity here to get it right. We would welcome discussions with the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, as well as the lawyers who have tried to find a way through on this without encroaching on the kinds of issues that the noble Lord, Lord Dobbs, rightly addressed, or on issues of free speech. We can find a way through and this is the only chance we have. If we are to wipe this out in the UK, we have to address it.

[Baroness Williams of Trafford]

Again, this has been a further excellent debate on the role of the criminal law in helping to put a stop to the practice of FGM in this country. I am grateful for the constructive approach that the noble Baroness, Lady Meacher, and others have adopted in both debates and in the discussions we have had outside and inside the Chamber.

As many noble Lords have said, we are aiming to get to the same end. It is slightly unfortunate that the amendment was tabled quite late and that there is a difference of opinion in terms of what the amendment seeks to achieve. My noble friend Lady Hamwee rightly pointed out, on the point about “other or others”, that the amendment does not seek to achieve what was sought in the original amendment, if that makes sense.

I also thank my noble friend Lady Tonge and the noble Baroness, Lady Meacher, for pointing out quite strongly that this is not a religious matter. There is nothing in any religious text that points to FGM being something that should be carried out on young girls. It is a specific cultural practice that exists in certain communities in the world and has found its way to this country. Legislation alone cannot eradicate a practice that is so deeply ingrained in the culture and traditions of those who practise it and have been doing so for centuries, but I agree that the law is a very important part of our response to the abhorrent practice of female genital mutilation, and it is right that we should change it where necessary.

We believe that the new offence that we have just debated of failing to protect a girl from risk of genital mutilation gets to the heart of the issue. The Government’s new offence focuses on those who allow this dreadful abuse to be perpetrated on their daughters rather than on those who may only encourage them to do so. That is not to suggest that encouraging female genital mutilation, or indeed any crime, is in any way acceptable.

I take the point made by the noble Baroness, Lady Hamwee, that such behaviour also constitutes an offence under the provisions of Part 2 of the Serious Crime Act 2007, which contains inchoate offences of: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. As the noble Baroness observed, the revised wording of the proposed new offence follows closely the wording of the existing inchoate offences. That is both its strength and, dare I say, its weakness. As a result, it would not cover behaviour that is not already covered by the existing 2007 Act offences.

We are not persuaded that creating a specific offence of encouraging FGM is necessary or appropriate. The provisions in Part 2 of the Serious Crime Act 2007 apply to all criminal offences precisely so that it is not necessary to create specific encouraging or assisting offences for every crime. We agree that the behaviours now referred to in the noble Baroness’s revised amendment should be criminalised, but that is already the case. This amendment would not advance the criminal law in this area—I suspect this is where we are going to have a further conversation.

We believe that changing the culture and attitudes that allow female genital mutilation to persist will be better achieved through the awareness raising and community engagement that the Government have already embarked upon, rather than through the creation of another, arguably unnecessary, inchoate offence.

I wholeheartedly commend the aims of the noble Baroness, Lady Meacher, and others in tabling her amendment. As I have said, this House is united in its desire to eradicate FGM, even though we may differ on how best to achieve that end. I hope the noble Baroness will agree that the government amendments that we have just debated represent a substantial package of measures to strengthen the civil and criminal law to tackle FGM. I firmly believe that they offer a better way forward, and on that basis I ask the noble Baroness not to press her amendment.

[Baroness Meacher]

I thank the Minister for her constructive response and all noble Lords who have spoken very constructively in this debate. I particularly thank my noble and learned friend Lady Butler-Sloss for her very important point that this amendment, unlike any other, would achieve deterrence, and that is what we want to do. We want to deter this dreadful act. We do not want just to prosecute after the event, although it is difficult ever to achieve a prosecution. If we can deter, we have really got to the goal that is now clearly shared across all sides of the House, which is to change the culture on FGM. We therefore need to change the way the leaders operate and the way they encourage people to indulge in this terrible act.

I also thank the noble Baroness, Lady Smith, for her very helpful support. We must try to find a form of words that the government lawyers, our lawyers and all other lawyers agree will achieve this incredibly important objective. On that basis, I beg leave to withdraw the amendment.

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Moved by

[Baroness Williams of Trafford]

48: Before Clause 68, insert the following new Clause—
“Knives and offensive weapons in prisons
After section 40C of the Prison Act 1952 insert—“40CA Unauthorised possession in prison of knife or offensive weapon
(1) A person who, without authorisation, is in possession of an article specified in subsection (2) inside a prison is guilty of an offence.
(2) The articles referred to in subsection (1) are—
(a) any article that has a blade or is sharply pointed;(b) any other offensive weapon (as defined in section 1(9) of the Police and Criminal Evidence Act 1984).(3) In proceedings for an offence under this section it is a defence for the accused to show that—
(a) he reasonably believed that he had authorisation to be in possession of the article in question, or(b) in all the circumstances there was an overriding public interest which justified his being in possession of the article.(4) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding four years or to a fine (or both);(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both).(5) In this section “authorisation” means authorisation given for the purposes of this section; and subsections (1) to (3) of section 40E apply in relation to authorisations so given as they apply to authorisations given for the purposes of section 40D.””

[Baroness Williams of Trafford]

My Lords, the violent use of knives and offensive weapons in prison poses a real threat to the safety of prison staff and prisoners. Only earlier this month we saw reports that an officer at Swaleside prison in Kent was attacked with a blade. I am sure that the whole House would agree that the possession of weapons in prison is unacceptable—and yet, unlike in public places and schools, possession of such weapons in prison is not currently a criminal offence. This new clause will put that right.

Amendment 48 would insert new Section 40CA into the Prison Act 1952 to create a new offence for persons in prison to possess any article that has a blade or is sharply pointed, or any other offensive weapon, without authorisation. This will include weapons manufactured by prisoners from everyday items, which are the types most commonly used.

While possession of such items is a criminal offence in a public place and in schools, it is not currently a criminal offence in prison. This has led to a disparity between the penalties available to tackle this sort of crime in the community and those available within prison establishments. This disparity must be addressed. Assaults and violence are a long-standing problem within prisons. If left unchecked, they can quickly destabilise a prison and threaten the safety of both staff and prisoners. While assaults without weapons are more common, assaults with weapons are not infrequent and can inflict life-changing injuries.

The new offence will add to the existing criminal offences in the Prison Act that make it an offence for a person to convey certain items—including firearms, explosives and other offensive weapons—in or out of prison without authorisation, or to be in possession of a camera, sound recording device, mobile phone or other similar device in prison. Possession of weapons by prisoners is currently dealt with through the prison adjudication system. The maximum penalty for a disciplinary offence under the internal adjudication system is 42 added days served in prison compared with the four years’ custodial maximum for the equivalent offence committed in the community.

Criminalisation will ensure that the more serious weapon possession offences can be punished through the criminal justice system rather than the prison adjudication system, as appropriate. The maximum penalty for the new offence will mirror the maximum penalty for the offence in the community: a four-year maximum sentence on conviction on indictment or a fine, or both; or, on summary conviction, a maximum six-month sentence or a fine or both.

There are of course legitimate circumstances in which persons in prison, including prisoners, may need to have sharp items or other articles in their possession. For example, a prisoner may need to use a bladed tool in a carpentry session, or may use kitchen knives when preparing meals. The authorisations framework in the Prison Act recognises this reality. Subsection (5) of the new clause therefore applies the existing authorisations framework to the new offence. Authorisations may be given administratively by the Secretary of State or by the Prison Rules in relation to all prisons or prisons of a specified description. Authorisations may also be given administratively by the Secretary of State, the governor or director of the prison, or by a person authorised by the governor or director in relation to particular prisons.

Amendments 58 and 65 are consequential on the lead amendment. All three amendments will ensure that the current maximum sentence for the offence of possession of a knife in the community is also available in prisons. This will act as a more effective deterrent and ensure that tougher punishments are available to tackle the problem of weapons and violence in prisons. The message to prisoners who want to possess offensive weapons is clear: we do not tolerate it in the community and we will not tolerate it in prisons. I beg to move.

Amendment 48 agreed.

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[Baroness Smith of Basildon]

My Lords, I can be fairly brief in this debate because I think the Minister will have heard the very real and deep concerns across the House on this. It is not the first time that concerns have been raised about the use or misuse of RIPA. In this instance we are talking about the rights of journalists obtaining information from confidential sources to retain that confidentiality without which some information may never come to light. Previously, there had been anecdotal reports of local authorities using the legislation, which the noble Lord, Lord Black, mentioned, including identifying whether parents were living in a school catchment area. These issues raise serious concerns and have serious implications for individuals and for issues of collective privacy.

I will say something about the wider and serious implications of misuse of the legislation, but I want to address the specific role of journalists’ sources. In effect, we are discussing how new technology has brought with it new challenges for a free press and for personal privacy. Thirty years ago, if the police wanted access to journalists’ sources, they would have to go to a court to obtain their notes. There were no mobile phone records they could access at that time. Similarly, we would not have seen journalists illegally hacking into private phone calls, as shamefully came to light more recently.

Over the weekend, like other noble Lords, I read some of the obituaries of Ben Bradlee, and this amendment came to mind as I was reading about his editorship of the Washington Post. I also watched “All the President’s Men”, which is one of my favourite films. The main people portrayed in that film—Bob Woodward, Carl Bernstein and Ben Bradlee—uncovered the most serious corruption at the highest level of government. I might tag this amendment as “the Watergate amendment” because, although the jurisdictions are entirely different, the principle is the same. Would that story, with all the implications for democracy and secrecy, ever have been told if the Nixon Administration had been able to identify the Deep Throat source or access the records of the journalists he was speaking to? If Nixon had been able to obtain mobile phone records in secret, would we ever have found out what was going on? There will be parallels in the UK, although perhaps they will not be so dramatic. That underlines the value and importance of serious investigative journalism. I am not talking about sensationalist stories about people that most of us have never heard of, but about the best kind of journalism, which I hugely admire, acting in the public interest, not just on what is of public interest.

Noble Lords will recall that, when the Government brought in new powers into the DRIP Act by fast-track legislation to deal with serious and organised crime, including terrorism, we were highly critical of the way in which they acted and of the need to use the fast-track process. Part of our demands in supporting that legislation was that there should be a complete, thorough and independent view of RIPA. We have said for some time that it is becoming increasingly clear and obvious that RIPA is out of date and does not have the right kind of framework or the safeguards we need. Recent reports that RIPA has been used to access journalists’ sources reinforce that. It is right that the Interception Commissioner is looking at it, but in addition it is essential that we get a clear guarantee from the Minister today that this issue will be included as part of the comprehensive review of RIPA led by David Anderson, the independent reviewer of terrorism legislation, that was agreed by the Government during the debates on DRIPA.

For many, the world seems less safe today. We must be vigilant against organised and serious crime and terrorism. I believe that the public understand and support the need for measures that the Government must put in place to deal with these threats to our safety. In order to have and maintain that public support, it is vital that such powers are only ever used for the purpose for which they were intended. If those powers are abused, whether by government, police or local authorities, it undermines public confidence in the very measures needed for the most serious issues, and that puts us all at risk.

Of course, journalists are not above the law. Like anyone else, they need to be investigated if they have committed a serious crime, and I do not think anybody is arguing otherwise. As noble Lords have pointed out, there is already an independent judicial process with prior jurisdiction needed by which the police can apply for access to journalists’ information, but we have a long tradition of additional safeguards in law to recognise the role of a free press in a democracy and to protect whistleblowers, and this should not be compromised.

That is why we need the RIPA legislation to be examined in its entirety, including in context and in application, to ensure that the legal framework enables the police to access the data they need to solve serious crimes and to ensure that it does not have a chilling effect on free speech and the free press on which our democracy depends. The Government must ensure that David Anderson’s review is ambitious enough in scope to resolve these problems and to respond positively to the issue before us now. We seek an assurance from the Minister that this matter will be considered in the review. In addition, the Government must make it clear by whatever means are appropriate that such legislation must only ever be used for the purpose for which it was intended.

[Baroness Williams of Trafford]

My Lords, I am grateful to my noble friend for explaining the purpose of this amendment. I do not believe there is any difference between my noble friend and me, or indeed any of your Lordships who have contributed to this debate, on the key issue at stake here. We all agree that a free and fearless press is fundamental to a democratic society. A key element of journalism is the protection of sources, and I can assure your Lordships that the Government do not wish to do anything which would undermine the operation of the vibrant and independent press that operates in this country.

The amendment which my noble friend has moved seeks to require public authorities who acquire communications data under the Regulation of Investigatory Powers Act 2000 to seek the authorisation of a judge when the material requested is subject to legal privilege or relates to journalistic sources. However, this is unnecessary, given the strict regulation RIPA already contains and the additional safeguards we are already putting in place.

Communications data—the who, when and where but not the content of a communication—would reveal the telephone number a journalist or lawyer calls, but would not reveal any of what was said or written in a communication. Last month, the independent Interception of Communications Commissioner issued a statement in which he said that communications data,

“do not contain any details of what was said or written by the sender or the recipient of the communication. As such, the communications data retained by CSPs”—

communications service providers—

“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.

None the less, I recognise that this is a sensitive issue. It is personal information and RIPA already applies rigorous controls on its acquisition.

Communications data can only be obtained when their acquisition is necessary for a specified purpose, such as preventing and detecting crime, and then only when it is proportionate to do so. Anyone can complain to the Investigatory Powers Tribunal if they think the powers have been used unlawfully against them. The whole system is presided over, and reported on, by the Interception of Communications Commissioner, a senior judicial figure.

These controls apply to all requests for communications data, and I believe we have one of the most stringent systems to be found anywhere, with both strict internal controls and independent oversight. If any of your Lordships have doubts on this point, I would recommend reading the annual report of the Interception of Communications Commissioner. Sir Anthony May’s report, published in April of this year, includes a detailed account of how the system works and a full statistical breakdown of communications data requests.

However, we recognise the special considerations that apply to journalists, lawyers and a number of other professions which may involve access to sensitive information. We have announced plans to update the Acquisition and Disclosure of Communications Data Code of Practice. These changes will make clear that specific consideration must be given by the senior authorising officer to the level of possible intrusion in cases likely to involve the communications data of those engaged in certain professions who may have obligations of professional secrecy. These professions include journalism, as well as those of lawyers, doctors and Members of Parliament, and will also include those known to be close contacts of members of these professions. Any application for communications data that are known to be the data of members of these professions or their close contacts will have to state this clearly in the application. It will also require that relevant information is available to the authorising office when considering necessity and proportionality. This change will make clear in the statutory code what is already existing best practice.

We will publish the updated draft code of practice for public consultation as soon as possible, noting the acting Interception of Communications Commissioner’s request to expedite publication of the code. It is also worth pointing out that on 6 October the acting Interception of Communications Commissioner, Sir Paul Kennedy, announced that he had,

“launched an inquiry into the use of RIPA powers to determine whether the acquisition of communications data has been undertaken to identify journalistic sources”.

It would certainly be premature to take any legislative action in advance of knowing his findings.

The noble Baroness, Lady Smith of Basildon, asked whether David Anderson’s review of RIPA would cover this area. I am sure that David Anderson will wish to look at all aspects of RIPA interception and communications data, including this issue.

In the light of the protections already available, the very clear commitment to strengthen these through the code of practice and the ongoing inquiry by Sir Paul Kennedy, I invite my noble friend to withdraw his amendment.

[Lord Strasburger]

My Lords, it has been an interesting debate. The House seems to have one view and the Minister seems to have another. I thank noble Lords who have partaken in the debate: my noble friends Lord Black and Lord Thomas, and the noble Baronesses, Lady Cohen and Lady Smith.

I do not think that the Minister was listening to what I said. Everyone outside the Home Office and the Foreign Office knows that the safeguards in RIPA have been proved ineffective time and again. I rather anticipated that the Government would try to fob us off with some tweak of the code of practice. Tweaking the code of practice is not going to offer the certainty that journalists need; it is not going to offer the transparency. All of this is still going to carry on in secret. We will not know what on earth is going on, and it will not give the press, the journalists or the media the opportunity to challenge the police’s intention to seek their phone records and others from the phone companies. So it will not take us any further forward at all.

I have to say that, as you might have detected, I am more than somewhat disappointed with the Government’s response. They have not listened to the debate. I hope they will reflect on the debate and come back with something more substantive. If not, I am quite sure that I and others, including those in another place, will return to this issue with a vengeance. However, for the sake of good order, I will withdraw my amendment.