Protection of Freedoms Bill

Jack Straw Excerpts

Tuesday 1st March 2011 Commons Chamber

[Mrs May]

I will not expect to recall Parliament every time a recess is called. We are talking about exceptional circumstances and I hope that Members will recognise that in exceptional circumstances it might be necessary to recall Parliament to put these powers in place.

[Mr Jack Straw (Blackburn) (Lab)]

My question follows that of my right hon. Friend the Member for Delyn (Mr Hanson). I had to propose a recall of Parliament, to which the Prime Minister and the Speaker agreed, to introduce emergency legislation following the Omagh bombing. The bombing took place on 15 August 1998, but with the very best will in the world we were not able to get a recall for almost three weeks, so Parliament was not recalled until 3 September, as the right hon. Lady might remember. That was a three-week period. If the prosecutors have a suspect whom they wish to continue to question, how in practice will the Home Secretary be able to shorten that time? The right hon. Lady shakes her head. I promise her that we were seeking the shortest possible time, and it is very complicated. How far has she thought about that?

[Mrs May]

I understand the point that the right hon. Gentleman is making about his experience in relation to the Omagh bombing. I believe that it is possible to shorten that period to ensure that we can recall Parliament in such exceptional circumstances if that is needed. It would be wrong for hon. Members to expect that the only circumstances in which that would be required would be towards the end of a 14-day period of pre-charge detention. The period that would be available for the recall and for the new measures to be put through might be a little longer than the right hon. Gentleman is considering.

I want to move on to stop and search, which is the other aspect of counter-terrorism legislation that we will deal with in the Bill. As well as scaling back the excessive counter-terrorism legislation of the past, we need to stop the misuse of these laws. The extensive and disproportionate use of stop-and-search powers under section 44 of the Terrorism Act 2000 is one example of that misuse. It has eroded public trust and dented public confidence. But the evidence, particularly in Northern Ireland, has demonstrated that when there is a credible threat of an imminent terrorist attack, the absence of such powers might create a gap in the ability of the police to protect the public.

The Bill therefore repeals section 44 and replaces it with a tightly defined power which would allow a senior police officer to make a targeted authorisation of much more limited scope and duration for no-suspicion stop-and-search powers. These would be authorised to prevent a terrorist attack only when there is a specific threat. The new power to search a person or vehicle would be subject to a number of additional safeguards, including a requirement that a senior police officer should reasonably suspect that an act of terrorism would take place and that the use of these powers was necessary to prevent the act of terrorism. The duration of any authorisation must now be no longer and no greater than is necessary to prevent the act of terrorism.

The purposes for which an officer may search a person or vehicle will be limited to looking for evidence that the individual is a terrorist or that a vehicle is being used for the purposes of terrorism. The Secretary of State would have the option of amending the authorisation, rather than only accepting or refusing it, as previously. Finally, the Secretary of State will be required to prepare a code of practice containing guidance on the use of the powers. These changes will provide the police with the powers that they need to deal with terrorist threats, while also ensuring that the public are not needlessly stopped and searched. The measures will also prevent the misuse of stop-and-search powers against photographers, which I know was a significant concern with the previous regime.

As recommended by the counter-terrorism powers review, I have considered whether the police need these revised powers more quickly than the Bill would allow. Given the current threat environment, I have concluded that they do. The most appropriate way of meeting the legal and operational requirements is to make an urgent remedial order under section 10 of the Human Rights Act 1998 to make immediate changes to the legislation. I will be doing this shortly. This is only an interim solution. The proposed new powers will remain in the Bill to ensure full scrutiny of the provisions.

Another important area where we will roll back the state’s power to common-sense levels is in the vetting and barring and criminal records regimes. The previous Government created the vetting and barring scheme with reasonable intentions, but, as with much that they did, their implementation was disproportionate and over-reliant on the state. There is no doubt that a small minority pose a risk to vulnerable people, including children, but requiring more than 9 million people to register and be monitored is not an appropriate response. We should be encouraging volunteers, not treating them like criminals.

The Bill will therefore introduce a new regime, whereby employers will be given a much more central role in ensuring safe recruitment practices, supported by a proportionate central barring scheme. We will retain the sensible features of the vetting and barring scheme, but will not require registration or monitoring, which means that there will no longer be an intrusive state-run database containing the details of 9.3 million people. The scheme will cover only those who have regular or close contact with vulnerable groups. This will create a more convenient and proportionate system for both employers and voluntary organisations and the people seeking to work or volunteer with children or vulnerable adults.

On the criminal records regime specifically, the Bill will enable criminal records disclosures to become portable, through a system which allows for continuous updating. This would enable an employer to establish whether new information had been recorded since the certificate was issued. It will also remove the provision requiring a copy of a certificate to be sent directly to an employer. This will allow an applicant legitimately to dispute the information released on the certificate, without this information already having been seen by the employer.

To administer the new scheme, the Criminal Records Bureau and the Independent Safeguarding Authority will be merged into a single, new organisation. These changes will ensure the continued protection of vulnerable people and children, while at the same time allowing those who want to volunteer to do so without fear or suspicion. It will end the unnecessary state scrutiny of law-abiding people.

As well as dealing with recent illiberal laws, today’s Bill rights historic wrongs. Consensual sex between men over the age of consent was decriminalised in 1967, yet more than 40 years on, gay men can still be penalised and discriminated against because of convictions for conduct which is now perfectly lawful. It is right that we should change the law and wipe the slate clean. The Bill establishes a scheme whereby an individual with a conviction that would today not be considered an offence would be able to apply to the Home Office to have the conviction and caution disregarded. If an application were approved, details of the conviction or caution would be removed from police records and the individual would be able legally to conceal their previous conviction in any circumstances. It would also no longer appear on a criminal record disclosure.

Greater transparency is at the heart of our commitment to open up government to greater scrutiny and to allow public authorities to be held to account, so the Bill makes a number of changes to the Freedom of Information Act to extend its provisions. We will consult the House authorities on these provisions before the Committee stage to ensure that parliamentary copyright is properly safeguarded. The Bill also makes changes to the Freedom of Information Act and to the Data Protection Act to enhance the independence of the Information Commissioner.

--- Later in debate ---

[Mr Jack Straw (Blackburn) (Lab)]

I am delighted to follow the hon. Member for Gainsborough (Mr Leigh). This is the first time that I have ever heard him endorse anything Liberal Democrat.

I share the hon. Gentleman’s opinion of the Bill, which he described as pretty unimpressive. The content of the Bill does not remotely justify its extraordinary and wholly inaccurate title. We would expect a debate on a Bill to protect our freedoms to include a far more wide-ranging discussion by the Home Secretary of the nature of freedoms in this country and how they should be properly balanced. We would also see a description of such essential freedoms in the Bill. However, the Bill, parts of which are worthy and others downright dangerous, is no more than a standard criminal justice amendment Bill.

[Mr Leigh]

indicated assent.

[Mr Straw]

I am glad that the hon. Gentleman endorses that view.

I am sorry that the Home Secretary has left the Chamber, although I understand the pressures on her. She made some extraordinarily hyperbolic remarks, and described the situation under the previous Government as the creeping intrusion of the state and a slow march to authoritarianism. As my right hon. Friend the shadow Home Secretary has accepted, the previous Government got some things wrong, and, in the light of experience, some things turned out not as intended. I will deal with those later, but on our record of balancing necessary security with the expansion of freedoms, I and the Labour party defer to no one.

Labour was the party that introduced the Human Rights Act 1998. I remind the Conservatives that they voted against it on Second Reading. I am glad that, following amendments to the Bill, which I sought to make to build the kind of consensus of which my right hon. Friend the shadow Home Secretary spoke today, the then Conservative Opposition supported it on Third Reading. The then shadow Attorney-General, the late Nicholas Lyell, said from the Opposition Dispatch Box that he wished the Bill well.

I also remind the hon. Member for Stone (Mr Cash) that the 1998 Act is about bringing British rights home, so that they can be adjudicated on by British courts. The Act does not create a sovereign Supreme Court. As my right hon. Friend pointed out, under section 4, even if the British Supreme Court declares that legislation made by this House is incompatible with the incorporated European convention on human rights articles—that happens rarely, and not in the cases of DNA or votes for prisoners—the legislation is not unenforceable: it stays in force unless and until this House decides otherwise.

The Labour Government introduced the Human Rights Act 1998, the title of which was never disputed, because it was indeed about human rights—we could have called it the “Human Rights and Freedom Act”. We also introduced the Freedom of Information Act. I am proud that I was the Home Secretary who produced those measures and a number of others. The previous Conservative Government opposed the freedom of information legislation at every stage for 18 years. They wanted only a non-statutory, unenforceable code. That is all they would have introduced.

[David T. C. Davies]

I wonder what the right hon. Gentleman made of the claim in Tony Blair’s book that one of the two worst things he did was to pass the Freedom of Information Act—the other one being to pass the Hunting Act 2004.

[Mr Straw]

I will pass lightly over the Hunting Act, if I may. I do not happen to agree with Tony Blair on that point. Although freedom of information requests can be irritating, especially if one is in government, I did not change how I operated as a Minister. It did not mean that I ceased to record my decisions or comments on submissions. As was brought out by the Dacre report, whichever party is in power there is a case for the proper protection of Cabinet discussions and collective responsibility—that issue might need to be reconsidered, because it has not worked out as intended—but I am in no doubt that overall the Freedom of Information Act has been a force for good.

In addition to those two Acts, we passed the Data Protection Act 1998. There had been no provision to protect people’s personal data before I introduced that Act in 1998. We also introduced extraordinarily important freedoms and protections for people who do not happen to have white skin, including in the Race Relations (Amendment) Act 2000 following the Lawrence inquiry.

I am sorry that the Home Secretary is not here, but while we are on the subject of freedoms, I would draw to the House’s attention the extraordinary difficulty that we had in providing freedoms for gay men and women by reducing the age of consent—equalising it at 16. The first attempt, which was an amendment to the Crime and Disorder Act 1998, was defeated in the Lords so strongly that we lost the whole Bill. I then had to introduce a further Bill containing simply a reduction in the age of consent to 16. That, too, was defeated in the Lords, and it was not until we used the Parliament Act that it got through, against vehement Conservative opposition, including from some in this Chamber—to the shame of the Conservative party—and a huge amount in the other place. So let us hear no more nonsense from the Conservative party or the Liberal Democrats suggesting that we in the Labour party failed to balance liberty and order effectively and properly. Yes, we introduced a number of measures on the other side of that equation, but most of those—as far as I can recall, all of them during my period—were actively supported by the Conservative party in opposition.

[Tom Brake]

I do not think that any Government Member is saying that the previous Government achieved nothing in relation to civil liberties. However, does the right hon. Gentleman agree that on the other side of the balance, in terms of what the Government did, were the fiasco over 90 days’ detention, control orders, blanket stop-and-search powers and some very draconian measures that went to the heart of threatening our civil liberties?

[Mr Straw]

I will deal with each of those measures in turn, and then come to the contents of the Bill. I will run through them in the order they appear in my notes. On surveillance measures, the Regulation of Investigatory Powers Act 2000 was introduced, again by me, to do what it says in the title—to regulate investigatory powers. My predecessor, now Lord Howard, had started that regulation. Before 1996, there was no regulation of those powers, and the most extraordinary situation obtained inside the police. They suited themselves whether to put microphones in walls. They had guidelines from the Association of Chief Police Officers, but there was no statutory supervision or proper regulation, and no account was taken of the equipment used. That was improved, to some extent, by my predecessor, and then comprehensively by RIPA. However, I accept that the provisions in RIPA have been used by local authorities, in respect of minor offences, in a way that was never intended, so I support the change proposed in the Bill.

I also support the change on wheel-clamping. I will have to look at some of the detail, but like my right hon. Friend the shadow Home Secretary I strongly celebrate the campaign by my right hon. Friend the Member for Doncaster Central (Ms Winterton), who has been promoted partly because of this and has now had to take Trappist vows as Opposition Chief Whip. I also strongly support a campaign that my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown) began on the elimination of all convictions involving consensual relations with gay men.

The hon. Member for Carshalton and Wallington (Tom Brake) asked me about counter-terrorism powers. Although we did not get everything right, the introduction of those powers needs to be seen in context. The Terrorism Act 2000 was approved by the House—I cannot remember where the Liberal Democrats were, but I remember that the Conservatives supported it. However, section 44 was intended to be used in a much narrower way than has been the case, so I have no objection to its effective redefinition in the Bill.

We got it wrong on 90 days—I am perfectly happy to say that—but it must be seen in the context of what happened on 11 September 2001. People were terrified, and the first responsibility of any Government is to secure the most fundamental liberty—the right to life. Of course, we still needed to have a balance, and we sought one, but we did not quite get it right. I am perfectly happy to say that. I simply say to the hon. Gentleman, however, that although the prescription in the Bill of 14 days is fine as a standard, the contortions in the Bill and in draft legislation that would provide for a reserve power of 28 days will prove impractical. The reserve power, which we all agree ought to be there, has to be used in circumstances in which it is virtually impossible for the Home Secretary to disclose the details. The full-scale parliamentary legislative process that would follow a recall of Parliament—you can bet your life that that is how it would happen, because that is how terrorists operate—would be the most extraordinary and mocking ever seen: the Home Secretary would have to come to the House and say, “I want this legislation to double the period of maximum detention, but I can’t tell you why.” It would be far better, in those circumstances, to say, “Here is a power for the Secretary of State for which he or she will be accountable in due time.” Given that he or she is the only individual in possession of all the information that should trigger this power, the responsibility for triggering it should rest with the Secretary of State by way of a special order.

[Mr Cash]

Will the right hon. Gentleman, to whom I am listening carefully, seek, as a former Home Secretary, to answer the question I put to the shadow Home Secretary regarding habeas corpus? I also asked Charles Clarke, another former Home Secretary, whether habeas corpus would survive these provisions. I never got a satisfactory answer. Does the right hon. Gentleman accept that these provisions do affect habeas corpus, but that, as I insist in my Bill, which comes out tomorrow, habeas corpus is absolute and must apply in all terrorism cases?

[Mr Straw]

I do not want to get drawn too far down this road, but the hon. Gentleman will know that until the Police and Criminal Evidence Act 1984 and the recommendations of the royal commission that preceded it, there was no statutory regulation of the length of time for which, or the circumstances in which, the police could hold a suspect. It is extraordinary, if we think about it. There were judges’ rules, which were non-statutory, and the only effective check on an arbitrary use of power—apart from practice—was habeas corpus. If somebody was locked up for too long, his solicitor or friends would threaten a writ of habeas corpus. That was how it worked, and I would refer those who think that those were halcyon days for criminal justice to the 2010 Judicial Studies Board lecture in which the current Lord Chief Justice, Lord Judge, reflected on his time as a junior at the Bar and on how that non-statutory system of regulation led—as I saw when I was a young barrister in the 1970s—to fitting up, to words being put into criminals’ mouths and sometimes to very substantial and totally unacceptable physical pressure and violence against suspects. Of course, one consequence was that confession statements were often successfully challenged. Habeas corpus is one part of the law, but where there is more recent statute, the courts will go to that first.

Let me turn now to other matters in the Bill about which I have some serious reservations. As the Member of Parliament for Blackburn, I have had many representations about closed circuit television. I do not know whether my experience is any different from that of anyone else in the Chamber, but all the representations I have received about closed circuit television have been requests from constituents to introduce more of it. In the whole of my 32 years in this House, I have never had a single representation seeking the removal of CCTV monitors. Not one. The demand is there because it makes people feel safe, and I bet that this experience is shared across the Chamber. I cannot remember an occasion as Home Secretary when I received any representations suggesting that the existing system, which we should bear in mind is subject to control under data protection and other measures, was unsatisfactory.

[Steve Baker]

Just on a point of information—as the right hon. Gentleman invites it—during the election campaign I received at least one request to reduce the amount of CCTV.

[Mr Straw]

I am grateful for that intervention, which makes my point, because that one representation is balanced by the large number that we receive the other way. I just wonder whether the Government are setting up significant and costly bureaucracy to solve a problem that does not exist.

On criminal record certificates, let me say this. I have been a governor of Blackburn college—a further and higher education college—for the last 20 years. Following the post-Soham measures, each member of the governing body had to fill in a lengthy form and produce their passport, as part of the application process for an enhanced CRB certificate, a process that I regarded as frankly rather tedious. I am pleased to say that it confirmed what I had already told the clerk to the governors, which was that I had no convictions since, as far as I knew, nothing adverse had been recorded by the police. At first blush I thought, “This is going a bit over the top.” I certainly accept that there ought to be a lighter regime for the generality of volunteers, but I would just offer this salutary point to the House.

Just before we were asked to fill in those CRB checks, there was an apparently entirely respectable man on the governing body who, to shorten the story, was convicted of very serious sexual offences against someone who was vulnerable—albeit an adult, and not at the college—and he went to prison. I cannot be certain about this, because I do not have access to the information, but I know enough about that man to know that there was information that could not have led to an earlier arrest but which was on the police database and would almost certainly have been included in a CRB check. I happen to believe that although it was tedious for me and everybody else on the governing body to apply for a CRB check, the balance in terms of public safety—and particularly the safety of young people and children—favours having such checks.

I just think—I know that my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) on the Front Bench believes this too—that this issue has to be examined with the greatest care. We forget too quickly the context in which the measures in question were put in place. The Soham murders were awful. Huntley, like many serious sexual offenders, was brilliant at deception. Indeed, there are no better deceivers—of themselves as well as everybody else—than serious sexually predatory men such as Huntley. If it means a bit more bureaucracy, but also that our children and grandchildren do not become the next victims, we should err on the side of safety.

Finally, let me come to DNA and the taking of other biometric data, including fingerprints. The hon. Member for Northampton North (Michael Ellis), who is no longer in his place, asked about the 1 million “innocent” people on the database. That prompts the question whether people who are “innocent” actually mind having their DNA on the database. Again, I do not believe that my constituents are significantly different in character or profile from those elsewhere, but plenty have had their DNA or fingerprints taken when either the case has not proceeded to charge or they have been acquitted, yet I cannot remember a single case of someone complaining to me about it. On two occasions in my life—this was before DNA was available—I have had my fingerprints taken. The first was at school when there was a burglary and it was necessary to eliminate a group of us as potential perpetrators, and I was happy enough to give my fingerprints.

As an adult, when I was a special adviser there was a criminal investigation into the leak of a limited circulation annexe to some Cabinet documents, and a Commander Habershon, with a sergeant who looked like Oddjob out of “Goldfinger”—I should tell the House this was before the Police and Criminal Evidence Act 1984—came to interview me. I was invited to give my fingerprints; and, looking at Oddjob, I decided that this was probably an invitation I should accept. I gave my fingerprints, not least in the belief—which turned out to be accurate—that doing so would be a means by which I would be eliminated from the police inquiries. They asked me, “What should we do if you are eliminated?”, and I said, “I really don’t mind if you hang on to these.”

As it happens, I have not given my DNA, unlike my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett), but I would be perfectly happy to do so. Most people believe—I know that some Conservative Members also take this view—that that is sensible for two reasons. One is that, as my right hon. Friend the Member for Normanton, Pontefract and Castleford said from the Front Bench, doing so helps to protect the innocent. Since the introduction of DNA, not only have more guilty people been convicted of serious crimes, but a number of serious miscarriages of justice have at long been last ended, resulting in justice for the innocent person who had ended up in prison.

I would also remind the House why I introduced the change that meant that once there had been an arrest or charge, the samples should be retained indefinitely. There were two cases in 2000—one was called Weir, the other was called R v. B—one of which involved a murder, the other involving a rape. In both cases DNA samples had been taken in respect of offences for which the defendants had been subsequently acquitted, but the courts held that that DNA evidence could not be used to convict them later. In the case of R v. B, there was a rape—an awful rape—in 1997 of an elderly person where DNA swabs were subsequently taken from the victim. In 1998, this man B was arrested and charged with an unrelated burglary and his DNA was taken. He was subsequently acquitted of the burglary; meanwhile, the forensic examination of the DNA taken from the rape victim was proceeding. After that acquittal, that DNA and B’s DNA were matched and he was charged with rape.

The case went to trial, and the trial judge took a submission from the defence that the critical evidence—in fact, the only evidence; but as the trial judge himself said, it was compelling evidence—of the defendant’s guilt, namely the DNA, could not be adduced in evidence because it should have been destroyed.

The matter went to the Court of Appeal, which said that, on a construction of the Act, that was correct. I do not criticise the senior judiciary for that decision, because they have a job to do, and it is to construe the law, not to invent it. We should not criticise them in any circumstances. It was quite inappropriate for the Prime Minister to criticise the judiciary recently. Any decision that they make, including those made by the Supreme Court, can be overturned by this House. It is different in respect of the European Court of Justice and the European Court of Human Rights, but I shall not tread that particular path just now.

As a result of the Weir case and the R v. B case, someone who was unquestionably guilty of murder and a guilty rapist were found not guilty because of the inadmissibility of the evidence. They were both allowed to go free and, my guess is, to commit further crimes. I then introduced changes in what became the Criminal Justice and Police Act 2001, and my right hon. Friend the Member for Sheffield, Brightside and Hillsborough then amended the legislation further.

I mention those cases to remind the Home Secretary that, in talking about freedoms, we must strike a balance between the important rights of defendants charged with crimes—which have been strengthened quite profoundly, not least by the Human Rights Act 1998—and the rights of victims and the public. The Law Lords said in their judgment, when they reluctantly had to endorse part of the Court of Appeal’s decision, that there had to be a triangulation—their word, not mine—to balance the three sets of rights.

My right hon. Friend the Member for Normanton, Pontefract and Castleford spoke of the risks that the Home Secretary is taking by introducing these measures. It is a truth about being Home Secretary that something will go wrong, and that when one thing goes wrong, something else normally does as well. Indeed, when I was Home Secretary, there was one week in which I had to come to the House to make an emergency statement each day. That was exceeded only by the late Lord Whitelaw, who had to make two statements on one day about things that had gone wrong—sometimes very badly wrong.

It is possible that the right hon. Member for Maidenhead (Mrs May) will turn out to be the luckiest Home Secretary since 1782, when the post was created, and I wish her well. I do not think that she will be, however. She is the person proposing these dangerous measures that will put freedoms at risk for the vast majority of the British public, and she needs to have a care both for the British public and for her own future. In her speech, she denied that these changes would undermine the detection of crime or lead to fewer guilty criminals being convicted. She said that she would go on to explain how and why she was able to make that statement, but I noticed that the rest of her speech was completely silent on that point. I was not surprised. The changes are bound to lead to some people whom we all know to be guilty and dangerous being allowed to go free.

After the right to life, the next most important right and freedom is the right to security. We were the first Government since the war to preside over a year-by-year reduction in crimes of all kinds, as the Library paper makes clear. There was a 43% reduction, according to the British crime survey. That dramatic reduction made this country safer. I celebrate all the freedoms, including those mentioned by the hon. Member for Gainsborough, but I also celebrate the fact that, although we are a long way from perfection, this country is now safer for people living in their homes, for people out on the streets and for people driving their cars. Those are real freedoms, and some of the changes in the Bill will put them at grave risk.