Policing and Crime Bill

Lord Campbell of Pittenweem Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, there is a serious risk of agreement breaking out. I will make one point, if I may, as the only Scottish lawyer, I think, in the Committee. It is important to remember that the verdict of not proven occurs after trial and trial takes place only if there is a reasonable prospect of conviction and, of course, it is in the public interest. So the standard is slightly different but that does not in any way undermine my support for what the noble Lord, Lord Marlesford, said. There is absolutely no doubt that inferences can be drawn from “insufficient evidence”. Indeed, the way in which the language is sometimes placed in a paragraph or a sentence goes a long way to suggesting that that may have been the conclusion of the prosecuting authorities but the police may feel rather differently. From that point of view, it seems to me that “lack of evidence” provides a pithy and succinct way of dealing with an issue that is all too common, particularly in relation to public figures.

[Lord Wilson of Tillyorn (CB)]

My Lords, I have not spoken before on this Bill but I will speak very briefly in support of the amendment moved by the noble Lord, Lord Marlesford. There is no need to name names. All of us in your Lordships’ House know of people who have been mistreated over the past months in the way that their cases have been dealt with and summed up by the police. The reputations of some very distinguished people have been damaged as a result. If those people have been treated in that way, there must be many others who have been treated similarly.

I confess to some doubts about whether legislation is the right way to deal with this. It seems a very large sledgehammer for what should be a small nut but it has been a terribly resistant nut and perhaps we have to use legislation. One would have thought that something like Standing Orders would be sufficient. But if this amendment is put to your Lordships’ House, I would support it.

Student Visas: Pilot Study

Lord Campbell of Pittenweem Excerpts

Wednesday 7th September 2016 Lords Chamber

[Baroness Williams of Trafford]

My noble friend makes a very good point. The uptake of places in English universities has increased for people from lower-income backgrounds, and the Scottish system might have something to learn from our excellent universities.

[Lord Campbell of Pittenweem (LD)]

My Lords, as this appears to be a Scottish day, I declare an interest as chancellor of the University of St Andrews. As has already been pointed out, tuition fees are not available to universities in Scotland. Higher education is devolved but, of course, the issuing of visas is not. For universities in Scotland such as St Andrews, therefore, a ready infusion of foreign students who pay enhanced fees is fundamental to their economies. May we have an assurance that when the results of the pilot scheme are available, account will be taken of the special position of Scottish universities?

[Baroness Williams of Trafford]

My Lords, I commend the noble Lord in his role, because St Andrews is an excellent university. The universities of both England and Scotland want to attract the brightest and best talent from around the world—and they do.

Investigatory Powers Bill

Lord Campbell of Pittenweem Excerpts

Monday 11th July 2016 Lords Chamber

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, the Committee will recall that privacy protections were quite rightly a significant topic of debate as the Investigatory Powers Bill passed through the other place. To make clear the duties in relation to privacy and the associated protections and safeguards, the Government introduced a new overarching privacy clause, Clause 2, and made amendments to Clause 1. Those clauses impose statutory duties on public authorities in relation to privacy and, as drafted, already clearly underscore the right to privacy and provide the necessary balance between that right and the powers necessary to keep us safe.

Amendment 1, moved by the noble Lord, Lord Paddick, seeks to add a new clause which would list the 10 tests proposed by the Independent Surveillance Review panel, convened by the Royal United Services Institute, or RUSI. At Second Reading in your Lordships’ House, the noble Lord, Lord Rooker, asked whether the Bill complies with those tests. My noble and learned friend Lord Keen confirmed that it does and undertook to set out precisely how it satisfies the RUSI tests. He then duly wrote to the noble Lord and has placed copies of the correspondence in the Library. Accordingly, and in particular in the light of the noble Lord’s helpful comments a minute ago, I hope noble Lords will accept that the Bill does indeed satisfy those tests. I recognise the desire of the noble Lord, Lord Paddick, to set the scene, as it were, for our forthcoming Committee debates, and while I agree with the principle and spirit of the proposed new clause, I do not consider that it adds anything to what the Bill already contains. I am confident that the Bill as it stands meets each test.

On the amendments proposed to Clause 1, it is worth re-emphasising that Clause 1 provides an overview of the Bill and sets out the duties relating to privacy and the robust protections applied to the use of investigatory powers. This provides the context for the revised Bill and the accompanying codes of practice, which make clear the strong privacy safeguards that apply to the use of the powers contained in the Bill. The Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe—and no more. Amendment 2 is therefore not required; Clause 1 provides a suitable and sufficient overview of the Bill and the privacy protections, so the proposed new text is not merited.

I listened with care to the noble Lord, Lord Strasburger. The Government and law enforcement are clear about the value and importance of accessing internet connection records, in particular, to prevent and detect crime and keep the public safe. I did not hear the noble Lord refer to that imperative, although it has been recognised during the passage of the Bill, including by noble Lords at Second Reading. The Joint Committee that scrutinised the Bill considered this issue in detail and concluded that,

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

On Amendment 3, I begin by thanking again the Intelligence and Security Committee for its diligent and valuable contributions to the Bill. We very much welcome its ongoing input to this debate. As I am sure the Committee will be aware, in its report on the draft Bill published last year, the Intelligence and Security Committee of Parliament called for the inclusion in the Bill of an overarching clause dealing with privacy protections. That call was echoed by the Opposition and the Scottish National Party in Public Bill Committee. Following those discussions, the Government introduced the new comprehensive overarching privacy clause in the Bill, which was widely welcomed on Report in the other place.

I agree fully with the spirit of the ISC’s amendment but do not consider that it is needed. The new overarching privacy clause and amendments made to Clause 1 not only achieve what the ISC’s amendment seeks to achieve but go much further; rather than signalling the importance of privacy, the amended Part 1 now creates a statutory obligation to have regard to the public interest in privacy. The privacy clause serves to make clear what was always the case: privacy is at the heart of this vital piece of legislation. Therefore, with great respect to the noble Lord, Lord Janvrin, I cannot see that his amendment, well-intentioned as it is, adds value to what is already in the text.

I hope these remarks are helpful and that, while doubtless the noble Lord, Lord Paddick, will reserve the right to return to individual issues, he will nevertheless be content to withdraw his amendments at this stage.

[Lord Campbell of Pittenweem (LD)]

My Lords, before my noble friend responds, having heard the discussion across the Chamber, I am satisfied by the explanation offered by the noble Earl. For this reason, respectfully, to be overspecific about principles that support the whole concept of privacy runs the risk of inclusio unius est exclusio alterius: that is, by being too specific, you prevent the opportunity to look at wider considerations. That may be rather a technical view to take at this stage but it also underlines the points that have been made already about the general thrust of this legislation, which has innovated to an extent that would not have been thought possible even five years ago.

[Lord Paddick]

My Lords, I am very grateful for the comments from noble Lords from around the Chamber, and particularly to the Minister. As we go through the Bill, we will, at each power, indicate how we believe the provisions do not match the 10 tests in the way the noble and learned Lord set out in his letter. However, we can leave that until we reach those sections of the Bill. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated that, of the three amendments, Amendment 3 in the name of the noble Lord, Lord Janvrin, would be the best to include. If it was necessary, we would be very happy to support Amendment 3.

If I may, I will speak––with some trepidation––in defence of my noble friend Lord Strasburger. There are people in the UK who have the sorts of concerns that he has articulated and it is very important that, during our discussions in the House, we seek every opportunity to reassure people who hold those views, however outlandish some Members of the Committee might consider them. At this stage, however, I beg leave to withdraw the amendment.

Investigatory Powers Bill

Lord Campbell of Pittenweem Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, one of the most well-worm clichés in politics is that the devil is in the detail. On this occasion, I venture to suggest that it is more than apposite, because I cannot remember legislation in my time either in the other place or here which contained so many detailed provisions. I have the misfortune to disagree with several of my noble friends on these details, but I happen to believe that the fundamental principles which underlie the Bill—of necessity, proportionality and legality—are ones that the whole House would readily accept.

I was struck by a statement made by the Home Secretary at Third Reading in the other place. She said—and I paraphrase slightly—that the duty of government is to protect its citizens and the duty of Parliament is to hold the Government to account for the way in which they exercise that protection. These cannot be absolute values; they are essentially relative. The extent to which one may be emphasised at the expense of the other will always be a decision of fine judgment. It will always be a decision which has to be taken in prevailing circumstances. The kind of legislation introduced in the United Kingdom Parliament in either the First or the Second World War reflected what was thought to be of particular urgency, but we must be clear that what may be proportionate or necessary at one time may not be proportionate or necessary at another.

It is well accepted that the Bill must provide a proper framework with which the judgments to which I have referred can be made, but I thought that the noble Lord, Lord King, who is no longer in his place, made a very sound point about the pace of change. One difficulty about the pace of change is that it is not constant but is always accelerating. When we consider that the iPhone, or rather—I had better be careful that I do not advertise—the mobile phone that we all carry in our pockets now contains a capacity far beyond that of the computers that used to occupy a whole room in the 1960s, it illustrates just how much capability has improved and been changed, and the extent therefore to which legislation has, so far as possible, to keep pace with it.

I am persuaded that this Bill generally provides a proper framework—but, as we have already heard, more amendments have to be made. In the other place, the willingness of both sides of the House to enter into dialogue and discussion helped to produce a Bill which is perhaps not as divisive as it might have been, but has none the less left for your Lordships a variety of issues of importance which will be aired for the first time only during consideration in Committee.

On the double lock, it is still argued by some that approval should be by judge alone. With that conclusion, I respectfully disagree. Parallels with other jurisdictions are dangerous. Sometimes reference is made to what happens in the United States, but it is important to remember that judges in the United States are elected or appointed not just because of their legal ability but because of their political affiliation. That is true in the Supreme Court—hence the controversy which surrounds the choice that Barack Obama may have about the appointment to a vacancy on the Supreme Court Bench.

I am thoroughly convinced that judicial review, or the application of its principles, is more than appropriate. Judicial review is a well-established process both in the common law and in the law of Scotland. Judges are well used to applying its principles and the law, as the Advocate-General will certainly be aware, has developed considerably since the case which gave rise to the Wednesbury principle was decided many generations ago.

My belief that the initiation of approval should rest with the Home Secretary seems entirely justified because there will be occasions when the mere granting of a warrant will have political implications. That may be so particularly if there is any question of activity authorised by a warrant taking place abroad. In those situations, the decision being of a political nature, I feel that no judge would be enthusiastic about the proposition that they and they alone should have responsibility for these matters—it would be entirely inimical to the approach that judges take in our system.

I understand the motive behind the amendment made in the other place which provides that the judicial commissioner has to take particular care to apply the general provisions on privacy which are now a centrepiece of the Bill. I suspect that that is an unnecessary belt when there were already adequate braces, because I cannot imagine any judicial commissioner worth his or her salt who would not, in interpreting a particular section of the Act, take account of all the rest of the terms of the Act—indeed, it is a fundamental principle of statutory interpretation.

As I have said already, the Government have shown remarkable willingness to accept and adopt proposals for amendments, particularly in relation to the activities of journalists and the relationship between lawyers and their clients.

I will finish by saying a word about bulk powers, which have been and remain controversial. I began by thinking that the jury was out, but it would be more correct to say that the independent reviewer, David Anderson, is out and we will have to wait for his report—but I think that there is confidence on all sides of the House in his ability to bring proper forensic application to these issues and to provide a report which will be of great assistance.

The powers that we are talking about already exist; they are not new powers. David Anderson’s review will provide a safeguard as to whether it is appropriate to continue with them, but, rather as the chairman of the ISC, Dominic Grieve, said in the other place, there is strong and general acceptance that the powers are necessary and proportionate. Without straining the metaphor too much, people say that it is like looking for a needle in a haystack, but you must first have access to the haystack before you have any opportunity of looking for the needle. I commend the Bill.