Protection of Freedoms Bill

Lord Bishop of Bristol Excerpts

Tuesday 8th November 2011 Lords Chamber

[The Lord Bishop of Bristol]

My Lords, the word “freedom” is a heady one. Throughout the ages people have struggled to resist and overthrow oppression, most recently in the so-called Arab spring. Freedom from violence, intimidation, unjust treatment and arbitrary interference by others, especially by the state, is clearly good. But freedom, having been gained, needs constantly to be protected, and in recent years Governments have become a little careless about this. That is what prompts this Bill and for that reason I welcome it.

However, the exercise of freedom is not entirely straightforward. The freedom that I have been talking about is what Sir Isaiah Berlin famously called “negative liberty”—that is, freedom from outside interference and coercion. That freedom is constantly misused to commit wrongs and damage other people, as repeated historic infringements remind us. The law has to deter and restrain such behaviour, which means that freedoms sometimes need to be curtailed, as the European Convention on Human Rights and Fundamental Freedoms—let us not forget its full title—provides.

As my noble friend the Minister has eloquently reminded us, the law has to attempt a balancing act, protecting freedoms, because they are essential to human flourishing, and where necessary restricting them in the public interest. When we have a Bill such as this before us, we have to ask whether the balance that it strikes is right in particular cases. I want to mention several areas in which the balance seems to me to be right and others where it is more questionable.

I welcome the provisions to amend anti-terrorism legislation. The reduction of the maximum pre-charge detention period to 14 days is overdue, though I wonder how viable the scheme for emergency extension will be. Similarly, the replacement of stop and search powers under Section 44 of the 2000 Act is, in view of their misuse, long overdue. The abolition of wheel clamping on private land should put an end to a highly objectionable and exploitative practice. The restriction of powers of entry brings order and proportion to a proliferation of laws that have become highly intrusive. I back the protection of biometric information on children in schools, with parental consent being required for processing information. In view of the accusation that the Church of England is institutionally homophobic, I am glad to support the disregarding of convictions for historic consensual gay sex offences.

There remain two areas of the Bill over which many people have substantial reservations. The first is the retention of fingerprints and DNA data on the police database. I understand why the Government have opted for a three-year retention period, but I worry that it tips the balance too far away from effective law enforcement by reducing the possibility of convictions for serious offences. The shadow Home Office Minister in another place argued that, if a retention period of six years were kept for the moment, a detailed analysis of DNA retention would provide more evidence to decide on the optimum length of the retention period. This argument appears to me to have force, especially since information once destroyed cannot be retrieved. The precautionary principle should be given weight here in case the consequences of the Bill turn out to be unexpectedly adverse.

Secondly, the Christian Forum for Safeguarding and a number of children’s and sporting organisations have serious concerns about safeguarding vulnerable groups and criminal record checks. The reduction of bureaucracy in this area is to be welcomed, but the provisions on barring narrow the scope for scrutinising individuals and the definition of regulated activity, and so make it more difficult to identify and bar people who represent a risk to children. There are also problems with the criterion of supervision for exempting positions from regulated activity and the production of a single certificate to the applicant only. Regrettably, the Bill fails to provide for enhanced CRB disclosures for those outside the sphere of regulated activity who have significant contact with children or vulnerable adults.

One issue raised at Second Reading in another place was the criminalisation in Section 5 of the Public Order Act 1986 of “insulting”, as distinct from “abusive” and “threatening”, words or behaviour. This has sometimes been used against people expressing controversial opinions in the street or elsewhere and it is arguable that it provides too low a threshold for an offence which restricts freedom of expression. I hope that the Government will think again about the matter.

In addition to the negative freedoms protected in this Bill, we must as a society nurture and promote the positive freedom to choose wisely and act rightly. This is something beyond the reach of government and law, but families, communities and institutions have a vital role in teaching and enabling children and adults to use their freedom not for selfish, destructive ends but for good purposes and for the benefit of others.

Freedom is always exercised in relation to others. As Joseph McLelland wrote,

“‘Autonomy’ should not mean freedom to choose … whatever one wills, but responsibility for what one chooses”.

With this background in mind, I support the general direction of this Bill.