Home Affairs and Justice

Lord Beith Excerpts

Thursday 10th May 2012 Commons Chamber

[Mrs May]

The hon. Gentleman misunderstands what will be done. There will not be accessing of information in real time. There are currently some limited occasions when real-time data are used, such as in kidnapping cases, where whether the individual is discovered could be a matter of life and death. These measures are not about accessing in real time, however, and I shall describe in a little more detail what our proposal is about and what it is not about, because some myths have been going around about the Government’s plans.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Does my right hon. Friend remember that one of the options that was considered when the previous Government were in power was the creation of a warehouse of information, because, as certain information was not needed by the service providers, the Government would have had to collect it? That would be a particularly undesirable and unattractive course of action, especially when compared with simply requiring providers to hold information for a little longer.

[Mrs May]

My right hon. Friend is right, and we opposed that proposal, as did our Liberal Democrat colleagues. We are not in the business of creating what my right hon. Friend described as a warehouse; this proposal is not about creating some giant new Government database, with every single piece of telephone information and e-mail. It is important to bust that myth.

What the legislation will do is provide an updated framework for the collection, retention and acquisition of communications data. It will place new obligations on internet and communication service providers to retain certain data securely for up to 12 months. After 12 months, the data will be destroyed. Just as now, the communications industry will be reimbursed by Government for providing this service. The costs incurred are a fraction of those we would face for any alternative method; indeed, there is no like-for-like alternative. As now, data would be available only to designated officers on a case-by-case basis, authorised under legislation approved by Parliament, and overseen by the independent Interception of Communications Commissioner, who is a former Court of Appeal judge.

There will be no extension of the number of people who can access that data. Indeed, we have already legislated, through the Protection of Freedoms Act 2012, to limit local authority access to communications data. Each acquisition of data must be authorised by a senior officer at a rank stipulated by Parliament. Access will be granted only if it is necessary and proportionate for a criminal or terrorist investigation, or to protect the public. Fishing expeditions would neither be necessary nor proportionate, and so would not be allowed.

The role of the Investigatory Powers Tribunal—a panel of senior judicial figures—will be extended to ensure that individuals have a proper avenue of complaint and independent investigation if they think the powers have been used unlawfully.

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[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to follow my colleague, the Chairman of the Home Affairs Committee, the right hon. Member for Leicester East (Keith Vaz). He made an interesting point about family visas, and he and I sat behind entry clearance officers in Mumbai and New Delhi, trying to work out why they generated so many appeals and discovering that, for example, people’s tendency to tell untruths that were irrelevant to their case caused some of the problems. Subsequent to that, when the Select Committee on Justice looked at appeals, we came to the view that Departments should be penalised if their decision-making processes were so bad that they generated a large number of appeals. It was not that we had in mind abolishing appeals; it was much more that Departments should have a financial incentive to get their decisions right in the first place.

I shall refer to other justice issues, of which there are quite a lot in the Gracious Speech, but first I welcome its general approach and the priority that it gives to the economy. My constituents are primarily interested not in how many Bills the House passes, but in whether we get the country out of this crisis, treat people fairly and build for the future. There are things that they would like to see, such as investment in the A1 and an announcement—long delayed—about school capital programmes so that we can have a new high school in Alnwick, but my farmer constituents will be pleased to see in the Queen’s Speech a long-standing Liberal Democrat commitment: the Bill to create an independent regulator for the supermarket supply chain, which has seen so many market distortions at the expense of small farmers.

On the issues that are of special interest to the Justice Committee, I start with the Crime and Courts Bill. It includes a lot of detail, which we still need to find out about, but we share a number of its general objectives: the reform of county courts offers opportunities for greater efficiency; the measure on driving under the influence of drugs will be welcomed throughout the House; and the facilities for broadcasting from courts, if carefully managed, provide real opportunities to achieve a better understanding of the courts.

There is tremendous scope for greater efficiency in fine enforcement, as it is a scandal that so many fines remain unpaid; there is scope within the transfer of documents, because the courts are able only gradually to secure good technology; and there are areas in which attempts to achieve greater efficiency have initially misfired, such as in the provision of interpreters in court proceedings, as the new contract, at least initially, has thrown up serious deficiencies that need to be dealt with and which the Committee has raised with the head of Her Majesty’s Courts Service.

I was intrigued to see the reference to judicial appointments and diversity, and it is not quite clear how the Government intend to achieve what they have in mind. The irony, to which the right hon. Member for Blackburn (Mr Straw) has sometimes pointed, is that the old system had started to generate greater diversity, albeit in a non-transparent way, because the Lord Chancellor was able to use rather informal powers to achieve greater diversity.

The new system does not seem to have taken us much further forward, so it will be interesting to hear what the Government have to say on that, but some of the problems lie in the professions from which judges are drawn and in the fact that Crown Prosecution Service-employed advocates have a limited ability to gain the judicial experience that would make them candidates for judicial offices. Those problems need to be addressed.

We will be particularly interested in the family courts provisions, some of which are in the children and families Bill, and in Westminster Hall on 24 May we will have a debate about family courts, when some of the issues that I am going to mention will be raised. One issue that is almost certain to come up is the problem of expert witnesses, including the cost, the duplication and the uncertainty surrounding qualifications, which we need to deal with.

One issue that the Committee has looked at closely and reported on, however, is one on which the Government appear to be moving in a direction that worries us, and that is the law relating to the interests of the child in family law proceedings. I reiterate what the Committee concluded in its report on the operation of the family courts. We stated:

“In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion. We heard evidence from Australia that the effect of the ‘shared parenting’ approach had not only confused parties about how the ‘best interests of the child’ test should operate, but can encourage a more litigious approach by parents in private law cases,”

which runs directly contrary to the Government’s desire to promote mediation and out-of-court settlements. I hope that the Government will move very carefully on that issue. The consultation process is not yet over.

The issue of mediation brings me to the fact that changes to legal aid will lead to more litigants in person in the family courts. Most members of the Committee start from the proposition that the courts are not a good place in which to resolve many of the family difficulties placed in front of them. There are few things more absurd than trying to use the formal process of a court to rule on whether a child can go to the scouts or guides on a Friday night or is required to be wherever their other parent lives. That is an unsatisfactory way to deal with such matters, so we are strongly behind the Government’s desire to see such issues dealt with much more through mediation. But when we find litigants in person in the family courts, the family courts will have to adapt to be able to deal fairly with those litigants in person.

Another feature of the Crime and Courts Bill is community sentencing. It is obvious that prison is essential for many very dangerous people; the recent case in Rochdale involving the abuse of young girls is ample evidence of when people have to be put in prison for the protection of society. But prison becomes a gross misuse of resources if we use it for those who would be more likely to give up crime if we dealt with them in other ways.

We have a responsibility to use taxpayers’ money to prevent taxpayers from suffering from crime and to keep them safe. We should therefore have a rational approach to a justice policy that achieves that objective. For many criminals, prison is relatively easy. If a person’s life outside prison is fairly disordered and disorganised, prison is not as great a hardship as it would be for some Members, for whom it would be a dramatic change in the life that they are able to enjoy.

While we were looking at the great success that Norway has in rehabilitation through its prison system, a Norwegian prison governor told us that one of the main problems with people coming to prison is that they do not take responsibility for their actions. What does the prison system do? It teaches them no responsibility at all; it takes away all responsibility and says, “We’ll tell you what time to get up, what you have to do and provide you with meals.” That is the end of responsibility. We need to change how we look at people who need to be made to take responsibility for their actions. That is why we welcome measures such as restorative justice and why the development of community sentences is so important. However, as the Government recognise, we have to win public confidence for community sentences.

We have to get to a place where the public do not regard the length of a prison sentence as the only measure of how seriously society takes a crime. Naturally, people want to express very strongly that they are not going to put up with certain crimes and that society will not stand for them, but if our only way of doing that is to add a few more years on to a prison sentence, we will often spend money in ways that do not prevent people from suffering from those crimes in the future. It is important that we develop the effectiveness of community sentences and the public understanding of them.

I hope that the Government’s approach to crime will also take account of the principles of justice reinvestment, which we set out in a report at the end of the last Parliament. They demonstrate that if we invest money soon enough, we can stop young people getting involved in crime in the first place. For that reason, I particularly welcome the Government’s commitment to early years education, which is one of many ways in which we need to be getting to children and young people at the stage when the likelihood that they might become involved in crime is increasing dramatically. Society seems so unaware of that.

I need to mention other justice issues. One is defamation. I am not going to get into the argument about that, because it has been so well explored elsewhere, including by the Joint Committee on the draft Bill. However, I do want to look at issues to do with the justice and security Bill, starting with the closed proceedings in civil cases. It is important to remember these proposals are not about criminal cases in which somebody might be imprisoned on the basis of evidence in closed proceedings, but about civil cases. The question is whether we can devise an acceptable procedure to stop Governments potentially having to pay damages to known terrorists and advocates of terrorism because the court cannot see all the information that is relevant to the case. I am not sure that we can do that, because it is very difficult and involves a very high threshold, but the stakes are high.

We should not confuse this with some wholly unacceptable procedure relating to criminal cases. It is about civil cases in which the Government are, in effect, the defendant in circumstances in which there is information that they cannot bring before the court. Public interest immunity does not solve that problem. The House will have to look at this very carefully. It must be clear from the start—I get the impression from the Home Secretary’s comments that it is now clear—that the judge, not the Executive, would decide whether such a procedure could be used. That must be a judicial and not an Executive decision. An Executive can trigger the process, but it must be a judicial decision as to whether the process can be used at all, even if this House has decided to go ahead with it.

The same proposed piece of legislation sets out to reform the Intelligence and Security Committee. I was a member of that Committee for 11 years, from its beginnings, so I have quite strong views about what needs to happen. There are certain key things about the Intelligence and Security Committee. It needs to retain confidence in the trustworthiness of its members; otherwise it cannot work in this field at all. It needs to retain the ability to report to the Prime Minister on things about which it cannot report to the House; otherwise it cannot draw attention to what might be serious problems, because to do so would be to give information to those who wish this country no good.

The most difficult issue for the Committee is the removal of the ability of the agencies to invoke a statutory bar on its examining operational matters. It is impossible to oversee intelligence without looking at operations; one would not understand what was going on. In practice, the agencies engage regularly and fairly extensively with the Committee on operational matters, but the statutory bar can be used as a refuge if an agency does not want to create a precedent by allowing the Committee to get involved in a particular area. Issues that are now coming to light demonstrate that if the Committee had had greater access earlier, it could have achieved a great deal more, to the benefit of proper democratic oversight and the long-term good of the agencies themselves. I have a lot of respect for the way in which the agencies developed their understanding of what the Committee was doing and were increasingly willing to engage with it fully, but at some points the statutory limitation on operational matters was used as a barrier. We must give the Committee the ability to send in an investigator such as an auditor who can look at any of the papers and files and then go back to it and say, “You don’t need to see much of this, but you ought to look at this particular file because it reveals a problem.”

We also have the draft communications Bill, which the House will have to look at carefully. It will come with draft clauses, which is a helpful approach. Its provisions are about who called whom, when, and from where, not about the content of the communications. Of course, the law enforcement agencies need some of this information to deal with matters such as those that the Home Secretary mentioned earlier, including paedophile cases and various kinds of organised crime, and they need to have access to whatever forms of communication people, particularly criminals, turn to if they think that there is a category to which such procedures cannot be applied. We do not want the Government to be able to gather all communications into some vast Government database, because we can be pretty confident that the scale of that organisation will mean that it gets mismanaged and will be open to abuse, just as in the past there has been abuse of the police national computer, for example. I am very glad that the Government are no longer taking that approach and are instead moving towards merely requiring communications providers to hold communications data for longer.

In that case and in others that I have mentioned, we should consider whether more use could be made of prior judicial authorisation. The system that we use not only for communications data, but for the interception of communications has an element of subsequent judicial review, but we do not use judicial authorisation. Of course, we do use that for a search warrant. If the police want to search somebody’s house, they go to a magistrate and ask for a warrant. That seems to be a perfectly good precedent that might be applied more strongly in the area of communications. I think that people would have more confidence if, rather than it being the Executive or the law enforcement body that gave permission, there was prior approval from the judiciary at the appropriate level, whether it be a magistrate or a High Court judge. That would depend on what was being considered—communications data or interception.

I want to make one last point about a Bill that was not in the Queen’s Speech. I did not expect it to be, although the Justice Committee encouraged the Government to include it. I hope that the Government will encourage and assist a private Member in taking up the matter. I am talking about a Bill to implement the Justice Committee’s recommendations on the presumption of death. Those recommendations would extend the scope of the private Member’s Bill introduced by our colleague, Tim Boswell, in the previous Parliament to help those who have had a missing family member for many years. Such people are unable to get any closure and cannot temporarily resolve the financial issues that arise when there is a missing person. Bank accounts may be drained by subscriptions and payments that the family cannot cancel because they have no authority to do so.

Legal provisions to deal with that problem could be put into a private Member’s Bill. There is widespread agreement around the House that that is desirable and it has been vigorously campaigned for by organisations that represent people in this appallingly difficult position. I therefore hope that the Government will assist a private Member to take the matter forward because it would be a welcome addition to the legislative programme. In my experience, few things are improved by passing a law, but the problems of people in that situation could well be improved by such a piece of legislation.