Protection of Freedoms Bill

Lord Lucas Excerpts

Tuesday 31st January 2012 Lords Chamber

[Baroness Hamwee]

My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.

Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.

The UN Committee on the Rights of the Child has made it clear that:

“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.

Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.

I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.

The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,

“it is they who should in the first instance be informed and consulted about the use of their personal data”.

[Lord Lucas]

My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.

[Lord Rosser]

My Lords, we have Amendment 24 in this group. The purpose of the amendment is to effectively remove from a child of primary school age the application of the provisions that would enable a child to override a decision by their parent or parents that their child’s biometric information should be processed. However, I fear that the wording of the amendment could be interpreted as also excluding children above 12 years of age from the provisions in the Bill on this issue, when that is not in fact the intention. Our view is that no child should be able to overrule their parents’ decision on this issue in the way envisaged in the Bill; indeed, we believe that the process should be agreed, or otherwise, by the parent on the basis of having to opt out rather than opt in, as the Government propose.

However, the Government have resisted changing the Bill other than to say that the consent of only one parent is required, provided the second parent is not raising an objection. Hence, our Amendment 24 seeks to address the issue of overriding a parent’s consent in relation to children of primary school age. The Government have argued that a child of primary school age should be able to make this decision. However, in fact, the decision that the child can make is restricted in a way that the Government have not yet explained. If the Government consider that a child of primary school age, from five to 11, is fully able to understand the issues involved and make a decision, which goes against the expressed wishes of their parent or parents that their child's biometric information should be processed, then why is it that if the parent, or one of the parents, declines to agree that their child's biometric information should be processed, the child should not also be given the opportunity to override that decision by saying that they do wish their biometric information to be processed? Indeed, in the light of the Government's amendment relating to parental consent, one parent could agree to their child's biometric information being processed, the other could disagree, and then irrespective of the fact that the child might wish to have their biometric information processed, their view would count for nothing, even though within the family two were in favour—that is, the child and one parent—and only one was against—that is, one parent.

What is the argument in favour of that situation when the Government are saying that a child should be able to overrule the wishes of their parents if the child says they do not want their biometric information to be processed? There may be reasons why a child would wish to agree to their biometric information being processed in a situation where at least one parent had said no. It might be that all or nearly all the other children in the class had agreed to have their biometric information processed, and the child might not wish to be different, or be treated differently, and indeed this might be a cause of concern to the child. Yet under the Bill, while a child of five to 11 years of age could stop their biometric information being processed, they could not insist on it being processed.

In the absence of a convincing explanation for this apparent anomaly—perhaps the Minister will provide one when he responds—there must be a suspicion that these arrangements are being introduced, under the guise of a very selective definition of children’s rights, when what they are really designed to do is implement an unsaid government policy of effectively making impossible the continued processing of a child's biometric information.

The Minister asked in Committee if we were proposing that a child should be dragged kicking and screaming to have their biometric information processed if they disagreed when their parents had given their approval. I will come back to that point. The trouble with the Government's proposal is that it provides a child, including a young child of primary school age, with the opportunity to very publicly, in their school, override the wishes of their parents, provided of course that they do not want their biometric information processed, but not if they do, contrary to the wishes of their parents. Apart from the prospect of some parents feeling somewhat humiliated, it is hardly giving a message to young children that they should respect the word and wishes of their parents. Indeed, it is doing the exact opposite. If it is all right to overrule parents’ wishes in this very public way on this issue, why should a young child not get the message that it must be all right to do it over other issues?

No school with any sense would force a child to have their biometric information processed in a situation where just parental approval or non-objection was required, but that child nevertheless still refused. A more sensible approach would be for the school to go back to the parents and invite them to discuss the issue with their child. If the matter could not then be resolved by either the child no longer refusing or, alternatively, the parents deciding to withdraw their consent, the school would do best not to pursue the issue and make a martyr, but to tell the child that if they so wished they could change their mind at any time in future. At least that approach would not leave the school having to give the child an open invitation to overrule the wishes of their parents, as is the case under the Government's proposals.

As I said at the beginning, our amendment does not change the Bill in the way we think it should be changed on this issue but, in view of the Government's stance, it does at least provide that the provisions enabling a child very publicly to overrule their parents—but, strangely only if the child does not want their biometric information processed, and not if they do—does not apply to children of primary school age.

--- Later in debate ---

Moved by

[Lord Lucas]

31: Clause 33, page 24, line 36, leave out “evidence in any such” and insert “criminal or civil”

[Lord Lucas]

This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:

“The surveillance camera code is admissible in evidence in any such proceedings”.

Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.

I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.

[Lord Henley]

My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.

I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.

My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:

“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.

I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.

With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.

[Lord Lucas]

My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.

Amendment 31 withdrawn.