Abu Qatada

Lord Rosser Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Rosser]

I thank the Minister for repeating the Statement made by the Home Secretary in the other place.

This judgment raises two questions for the House. First, what more are the Government doing to get Abu Qatada deported? Secondly, what are they doing to ensure the public are protected in the mean time?

The Minister has made clear the Government’s displeasure at and disagreement with the decision made by the Special Immigration Appeals Commission to free on bail the cleric Abu Qatada. The decision comes in the wake of a ruling by the European Court of Human Rights that Abu Qatada could not be deported to Jordan as he would face what was deemed to be a flagrant denial of justice since he could face a trial based on evidence obtained through torture. As the Minister said, that ruling overturned a decision by our Law Lords. Perhaps the Minister could say when the Government will decide on any form of appeal against the European court’s ruling.

Abu Qatada has been detained under immigration laws for the past six and a half years pending his deportation to Jordan. The bail conditions, which have now been set, are in line with those set in 2008 when he was released for a few months. They are substantial and include a 22-hour curfew. Does the Minister know whether it is true, as has been reported in at least one newspaper, that the Special Immigration Appeals Commission judge indicated that the conditions of bail would be relaxed after three months if there was what he—the judge—described as no “demonstrable progress” made with the Jordanians?

We share the Government’s position that Abu Qatada should be deported and should stand fair trial in Jordan. There is a need for the Government to pursue discussions with the Jordanian Government to make that possible. The Government, I know, are aware that before the election the British Government had reached agreement with Jordan on safeguards against the use of torture in order to make deportation possible. That agreement has been upheld and endorsed in our own courts. Clearly it is possible to make diplomatic progress. However, we need more evidence that the Government are straining every sinew to address the remaining issue that has now been raised by the court. Perhaps the Minister could say what discussions there have been with the Jordanian Government over the past 12 months on this issue of safeguards so that Abu Qatada can be deported without being put at risk of a trial based on evidence obtained through torture of others. Perhaps more significantly, what discussions are expected over the next three months, and how do the Government rate the prospects of bringing such discussions to a successful conclusion?

From the Minister’s words it would appear that the Government do not consider the bail conditions sufficient to address the issue of the threat to our security which Abu Qatada represents. Abu Qatada has never been charged in this country. Perhaps the Minister could say whether that is expected to remain the position or whether the issue is under consideration now or is likely to be if the bail conditions—and we know that Qatada has previously broken bail conditions—either continue because it is not possible to deport him or, if it is true, are relaxed after three months.

In addition to the 22-hour curfew, the bail conditions apparently involve no internet or electronic communication devices, no travel outside an approved boundary and restrictions on visitors. These requirements would appear to go beyond the conditions provided for under the Government’s revised weaker control orders, the TPIMs—conditions which the Government said would be sufficient to control and keep in check the activities of those who could not be charged but who were deemed to pose a serious threat of terrorist action.

Is it the Government’s view that the provisions in their new, weaker, revised control orders, the TPIMs, would be sufficient to control any threat posed by Abu Qatada, assuming that he is released on bail very shortly; or do they take the view that having been released on bail by the Special Immigration Appeals Commission, the more substantial bail conditions which have been set out by the judge are, indeed, all needed? If they are felt to be needed for Abu Qatada, why would they not also be needed for those constrained under the new, weaker control order regime that the Government have introduced, the TPIMs, which are time limited to a maximum of two years, provide only for an overnight residence requirement, provide access to the internet and telephones, and do not enable restrictions to be imposed on someone coming into London?

The Government cannot blame the European Court for their own decision to weaken British counterterrorism powers. We did, of course, urge the Government to keep the previous control order regime at least until after the Olympic Games. The Minister needs to spell out what action will be taken, including the possibility of any further legislation, and what safeguards will be introduced to minimise the risk to national security that the decision to grant bail to Abu Qatada represents both in the immediate future and later this year, at a time when our police and security forces are already going to be stretched to the limit with the Diamond Jubilee celebrations at their peak and the Olympic Games starting.

The courts, the security services and the Home Secretary have all made clear that Abu Qatada is a continuing threat to public safety and national security, and the Home Secretary and the Government should be straining every sinew to get him deported. If they cannot, the Home Secretary should make sure that we have the legislation and the safeguards in place to protect the public now.

Protection of Freedoms Bill

Lord Rosser Excerpts

Monday 6th February 2012 Lords Chamber

Moved by

[Lord Rosser]

37A: After Clause 41, insert the following new Clause—
“Rewriting powers of entry to address metal theft
(1) Section 26 of the Theft Act 1968 (search for stolen goods) is amended as follows—
(2) In subsection (1), after “goods” insert “or that admission to a place specified in the information is reasonably required in order to ascertain whether provisions under section 22A(1) are complied with,”.
(3) After subsection (1) insert—
“(1A) A warrant granted under subsection (1) for the purposes of ascertaining compliance under section 22A, shall authorise that person to enter that place at any time within one month from the date of the warrant.”
(4) After section 22 insert—
“22A Handling of stolen metal
(1) Subject to the provisions of section 26, any constable shall have a right at all reasonable times—
(a) to enter and inspect any place for the time being a place which is occupied by a scrap metal dealer wholly or partly for the purposes of such business, or any place which he reasonably believes is occupied for such a purpose, irrespective of whether or not it is entered on the register;(b) to require production for inspection, of any scrap metal kept at that place and any record which the dealer has in his or her possession.(2) A magistrate may grant, on application by a senior police officer, a closure order or, where such an order has already been granted, an application to extend a closure order in relation to a place, subject to the following conditions—
(a) the senior officer reasonably believes that the trader is encouraging, supporting or facilitating the trade in stolen metal whether knowingly or not, and (b) in his or her view such closure is necessary for the prevention of theft or handling of stolen goods or for the further investigation of those offences.(3) For the purposes of this section a person shall be deemed as carrying on business as a scrap metal dealer if—
(a) a place in that area is occupied by him or her as a scrap metal store, or(b) no place is occupied by him or her as a scrap metal store, whether in that area or elsewhere, but he or she has his or her usual place of residence in that area, or(c) a place in that area is occupied by him or her wholly or partly for the purposes of that business.””

[Lord Rosser]

My Lords, the purpose of this amendment is to provide for strengthened and new powers of entry for the police to enter and inspect known or suspected scrap metal dealer premises, and any metal and records kept on the premises, as well as powers to close down dealerships should those premises be suspected of being used for knowingly handling stolen material. At present the police are able to enter only registered premises but this amendment will give the right to enter premises irrespective of whether they are entered on the register, as well as the power to close dealerships.

Considerable concern has been expressed in the light of the increasing incidence of metal theft related to the rise in its value, with the price of copper having doubled to more than £5,000 a tonne since 2009, and the value of scrap metal at an all-time high. This has become a highly organised crime. Metal is stolen to sell on to dealers who will probably smelt it down before selling it on. The impact of such thefts on many people, buildings and organisations is considerable, not least on the railway network and railway passengers and on churches and indeed war memorials, with at least one war memorial a week being stripped in London.

The cost of metal theft is now estimated to be running at £1 billion a year and causing some 16,000 hours of train delays. In total, Network Rail says the cost of such thefts has amounted to some £43 million across the United Kingdom. It is also apparently resulting in the deaths of two thieves a month as they attempt to strip cabling from electricity substations or railways. That last point may not arouse much concern or sympathy, but it is still the loss of two human lives a month which could be avoided and is perhaps a consequence of the current spate of metal thefts that is not often raised.

It is important that action is taken as quickly as possible. At least one major recycling firm has moved to cashless payment, and on Thursday we shall be debating my noble friend Lord Faulkner of Worcester’s amendment to the Legal Aid, Sentencing and Punishment of Offenders of Bill, which provides for cashless transactions to be compulsory in the scrap metal trade. This would be an important action in the drive against metal thefts and I commend my noble friend for his robust campaign on this issue.

We know that police forces are stepping up their activities against this lucrative crime but they need to be given further powers to combat it with maximum effectiveness. One such power is provided for in this amendment, namely stronger and new powers of entry for the police to premises suspected of being used for handling stolen metal and the power to obtain a closure order against a dealership where there is a belief that such criminal activity is taking place. This amendment, providing new powers to the police to enter and close down unregulated scrap metal dealerships, is in line with the recommendations of the Association of Chief Police Officers’ metal theft working group.

Combined with the amendment tabled by the noble Lord, Lord Faulkner, to the Legal Aid, Sentencing and Punishment of Offenders of Bill to ban cashless transactions, this amendment presents a robust package of measures to tackle this growing epidemic. I hope the Government will indicate their support for this amendment and ensure that the police are properly equipped to deal with the increasing incidence of metal thefts. I beg to move.

[Lord Faulkner of Worcester]

My Lords, I have added my name to Amendment 37A, tabled by my noble friends Lady Royall and Lord Rosser, because the new powers that it confers on authorities to enter and inspect scrap metal dealerships represent, as my noble friend Lord Rosser says, an important element in the comprehensive overhaul of the Scrap Metal Dealers Act 1964, which I have been calling for in your Lordships’ House since I asked my Oral Question on the subject on 3 October last year. It also fits perfectly with the move to cashless transactions, which the Home Secretary said in a Written Statement on 26 January that the Government now support. This is the subject of my own amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, which the Committee will be considering on Thursday, possibly alongside the Government’s own amendments, the details of which we are awaiting.

This morning I met Deputy Chief Constable Paul Crowther of the British Transport Police to discuss this amendment. As the House will be aware, the BTP has been in the lead on the metal theft issue and I again commend it for what it is doing to tackle it. It has asked me to tell your Lordships—and I quote directly from a message it has given me—that:

“The power of closure is something that we would really want for a number of reasons, not least so that we can support legitimate businesses who will comply with the cashless system when it is introduced”.

Over the last four months I have been overwhelmed by the representations that have been made to me about the necessity for government action to tackle what is now a metal theft epidemic. The Transport Select Committee in another place says that the theft of signalling cable was responsible for the delay or cancellation of over 35,000 national rail services last year. There are eight actual or attempted thefts on the railway every day. My friends in the heritage rail sector—and I declare an interest as the president of the Heritage Railway Association—report weekly thefts of metal objects from their yards, depots and sheds, the value of which runs into thousands of pounds. Almost no aspect of our national life has escaped unscathed: manhole covers; war memorial plaques; even huge pieces of art like the Barbara Hepworth sculpture in Dulwich Park or the statue of Dr Alfred Salter in Cherry Gardens, Bermondsey; lead from church roofs and sacred objects from within churches; electricity and telecom cables—the list is endless.

Many of your Lordships will have seen the open letter published in the Times on 11 January that was signed by an impressive array of business leaders, including the chairmen or chief executives of BT, Network Rail, the Energy Networks Association and the Ecclesiastical Insurance company. They called for a complete update of the Scrap Metal Dealers Act 1964. Among the long list of changes they want to see were police powers to close unscrupulous scrap metal dealers, and police authority to search all premises owned and operated by scrap metal dealers—the measure proposed in this amendment. In my view, the police should be given powers to inspect any articles and records kept on site and to close down dealerships should there be reasonable suspicion that they are handling and dealing in stolen metal.

It is abundantly clear that the law needs to be completely rewritten. In the other place tomorrow there will be a debate initiated by officers of the All-Party Parliamentary Group on Combating Metal Theft—I declare a very modest interest as one of its vice-chairs. In addition to the move towards cashless transactions they will call for a robust licensing scheme for scrap metal dealers to replace the present registration scheme, as well as all the measures that have been put forward by industry, the church and the police.

I shall be very interested to hear what the Minister has to say when he responds. I know that we will achieve a cashless regime either on Thursday or at Report stage of the LASPO Bill, but I hope that he will be able to give a commitment that there will at least be comprehensive legislation in the next Session which will rewrite the Scrap Metal Dealers Act 1964.

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[Lord Henley]

My Lords, we have cashless in the LASPO Bill and I hope that it will deal with this problem.

We have to consider the other important points that need to be dealt with. One of those—and, again, this is why I am interested in how the Opposition voted on the previous amendment—is whether the powers of entry are adequate and what powers of entry need to be given to the police. We can look at these matters, first, in the LASPO Bill and consider further regulation in due course.

I welcome the support of the Front Bench opposite for further action in this area. Obviously, there is more that we can do. I do not think that this is the right way of going forward at this stage because, as I said, we want to bring forward amendments in the LASPO Bill on Report. I can give an assurance that as soon as possible thereafter, by whatever legislative means is appropriate, we will bring forward the further amendments that need to be made, particularly to the Scrap Metal Dealers Act 1964. With those assurances, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Rosser]

The Minister asked me where my figure on the cost of metal theft, at £1 billion a year, came from. I would not say that the figure necessarily came from the most authoritative of sources, but it appeared in a fairly prominent newspaper article last December.

[Lord Henley]

Is the noble Lord prepared to mention which newspaper he relies on?

[Lord Rosser]

I am trying to remember which one it was. As the Minister has asked me which one it was, I intend to tell him. I may be wrong, but my recollection is that it was the London Evening Standard.

It is clear that the current level of metal thefts has caused a considerable increase in the cost of security arrangements. It is already costing businesses, organisations and local authorities money and we need action. This amendment, along with the amendment from my noble friend Lord Faulkner of Worcester which is to be considered on Thursday, provides for action now—action which we badly need against this serious, organised and growing crime. As my amendment goes further than the Government appear to be contemplating in respect of police powers of entry and closure of dealerships—powers that are needed now—I wish to test the opinion of the House.

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We do not want rogue clampers but nor do we want rogue parkers leaving their cars on private property where they have no right to be and interfering with other people’s freedom and use of their own land. These amendments seek to restrict rogue ticketers, protect consumers, set up an ombudsman scheme and safeguard the rights of small, private landowners who never wanted to run a car park but just want to be able to park by their own home. I beg to move.

[Lord Rosser]

My Lords, my noble friend Lady Hayter of Kentish Town has set out the arguments in favour of these amendments. I certainly do not intend to repeat them all. The first amendment aims to close a loophole created by the government amendments tabled in Committee in another place. It ensures that rogue operators will not be able to extort money from drivers by way of barriers rather than clamping.

My noble friend also referred to the amendment that allows for limited licensing of parking enforcement schemes by the Secretary of State to recognise residents and community groups who suffer a serious problem with unlawful and obstructive parking. She explained the reasons why this amendment is necessary and we certainly support it. It retains the clamping ban but allows local resident and community groups to apply for the provision of a parking enforcement scheme to address specific problems with unlawful parking in their area.

Then there are amendments that deal with the introduction of an independent dispute resolution scheme, funded by the industry and available to all motorists—it is important that it is available to all motorists. Cases where mistakes are made or consumers feel that they have been unfairly treated, such as being pursued for excessive charges, can be decided fairly, quickly and cheaply. Rogue ticketing is already a serious problem. It is only likely to get worse once rogue clampers are put out of business. Citizens advice bureaux are dealing with increased numbers of parking inquiries, queries and complaints. Last year, compared with the previous year, they saw an increase in people visiting their website seeking information and advice about parking issues.

The amendment establishes an independent ombudsman system that avoids costs and clogging up of the courts by challenges to parking fines brought by consumers. The issue is that it is not the members of the BPA who are most likely to operate outside the bounds of good practice. In order to protect consumers from unfair and disproportionate charges, all parking operators must be required to meet minimum standards for clear signage and proportionate charges. There must be an independent complaints process for consumers.

That is one of the purposes of these amendments. They give those parking their cars a better deal. They also give a better deal to those in certain locations who have parking on their own particular private property and will apparently be unable to seek effective redress.

I hope that the Government will give sympathetic consideration to these amendments and indicate that, even if they are not prepared to accept them, they will take the matter away and come back to it on Third Reading with amendments of their own covering the same issue.

[Baroness Randerson]

My Lords, I do not share all the noble Baroness’s concerns but still remain concerned about some aspects of the situation. I thank the Minister for the time he gave us in discussing these problems in a meeting. The Government are showing that they are aware of the issues. Some of their proposals—that places suffering from this kind of inappropriate parking can employ a parking company—would be suitable in large situations where the parking was widespread, regular and frequent. However, often these problems take place in, for example, the car parks of churches or community centres, or in residential car parks associated with blocks of flats. The problem is not on a large enough scale for an organisation which exists for a totally separate purpose from parking. It does not suit that kind of organisation to engage a parking company to sort out its problems. The Government have to look at a different resolution to the problem. There are still some questions to be answered.

In my speech in Committee, I asked the Minister what the situation was in Scotland, where there is no clamping. I am strongly in favour of the purpose behind this Bill in that respect: clamping should not be allowed to continue. Scotland has not had clamping for many years. Are there problems there associated with rogue ticketing? There do not appear to be massive problems with that but there appears to be an increase in the number of complaints about ticketing brought to consumer organisations in recent years. The Government need to address the issue of how they will deal with any problems which may emerge as a result of this change in legislation which will undoubtedly go ahead.

What are the Government proposing to do in relation to the forthcoming EU directive on ADR—the alternative dispute resolution procedure? I gather that that will be required in the near future for all traders providing goods and services. That would include parking companies. We need reassurance about the independent appeals process. There is still this gap in the situation where we can expect supermarkets and so on to find a satisfactory alternative to clamping. It is not reasonable to expect a small community-based organisation to employ a parking company and issue tickets. That is not their purpose. It adds bureaucracy and concerns for them.

Protection of Freedoms Bill

Lord Rosser Excerpts

Monday 6th February 2012 Lords Chamber

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should advise the House that if Amendment 50 is agreed to, I cannot call Amendments 50A and 51 for reasons of pre-emption.

[Lord Rosser]

My Lords, the amendments in this group remove the distinction that the Bill makes between supervised and unsupervised work with children in regulated activities. The Bill would restrict the definition of roles that fall under “regulated activity” and would mean that employers would not be required to do CRB checks for many employees working with, and in close proximity to, children.

Furthermore, employers would not be able to access information on whether that individual had been barred from working with children and vulnerable adults. I note the further safeguards that the Government have introduced following Committee, which amend the definition of “supervised” as specifically that which is reasonable for the protection of the children concerned. That is a step forward and clarifies that organisations and employers in regulated activity are under a statutory duty to provide adequate supervision for the safety of those children. However, without the ability to access information as to whether an individual had been barred from working with children, it is not clear how the Government expect organisations to discharge such a responsibility adequately. They appear, in effect, to be placing the burden of responsibility wholly on to organisations for the protection of children while denying them access to key information.

Perhaps more seriously, the Government’s proposed amendment to the definition of supervision fails to recognise the serious issue of secondary access, which has been raised by numerous children’s charities and voluntary organisations. Many cases of child abuse do not occur in a place of regulated activity such as a school or sports club but in other unregulated, unsupervised places, as a result of the trust they forge with both the child and the parent through their position of authority and as a result of the assumption that that individual has been adequately vetted by the organisation. The case of Barry Bennell demonstrates just how such relationships can develop over many years, outside the supervision of a regulated activity. That individual received a long jail sentence for the serial abuse of young boys over a period of years when he was a scout for north-west and midlands junior football teams. He gained secondary access to players through his position and invited the boys to stay with him at his home or took them on tours to various places where he sexually abused them.

Revising and re-revising the definition of supervision through guidelines and amendments is not enough and will not stop men like that from gaining the trust of children and their parents by working without any checks in close and sustained contact with children. I know the Government are determined to remove what they regard as unnecessary regulation, but regulation is often about protecting and safeguarding people—often vulnerable people—from the potentially careless, irresponsible or criminal acts of others. The Government should think hard about the words of the noble Lord, Lord Bichard, and the potential consequences of the exemption of supervised workers and volunteers, which means that not all those working in regular contact with children and vulnerable adults are regulated.

[Lord Harris of Haringey]

It is unfortunate that we are debating these amendments at this time of night in a fairly sparse Chamber. I fear that in a few years time people will look back on this debate and say, “Why did Parliament not do more? Why was Parliament so happy to allow those changes to go through without further checks and cautions?”. I am therefore grateful to the noble Lord, Lord Bichard, for his amendments. He is quite right to say that a balance has to be struck and that no system will necessarily protect all children against abuse and against predators. However, the omission that is being created by this Bill is enormous. It is saying that if a volunteer, or someone working with children, is subject to supervision, they do not have to be checked at all. The reality is that parents send their child to a school or a club because they assume that it is a safe place. They assume, therefore, that the people who will be in contact with their child at that school, that club or that activity are also safe. I suspect that unless they pore over the details of our debate, which I am sure is not the case, they will assume that all those people are being checked against these registers and lists. Of course they will not be. They are volunteers or they are under the day-to-day supervision that is envisaged.

Protection of Freedoms Bill

Lord Rosser Excerpts

Tuesday 31st January 2012 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, as we have previously discussed, the Bill creates a general rule that all individual samples will be destroyed within six months of being taken. This represents a significant step in protecting the civil liberties of those whose DNA is taken in the course of a criminal investigation, as it ensures that the particularly sensitive genetic material, which is generally not needed for identification purposes, is destroyed at the earliest opportunity.

However, as we have proceeded with our consideration of how to implement the provisions of the Bill, prosecutors at the Crown Prosecution Service have made representations to us that, in a limited number of cases each year, it would in fact be necessary to retain the individual samples in order to deal with any subsequent challenge by the defence to the comparison made between the DNA of the individual and that found at the crime scene.

Prosecutors are concerned that, if they are not able to retain samples in these cases, they might be unable to withstand such a challenge and acquittals on technical grounds might result. An example of the type of case where such an issue might arise could be where the crime scene stain contained a mixture of, for example, the blood of both a murder victim and their attacker, and possibly a third person, such as an innocent housemate of the victim. In such a sample, the quantity of material from the victim is likely far to exceed that from the attacker and the innocent third party but, without retaining the reference samples from all three individuals, the chemistry and analysis used to derive the three individual profiles, and thus to make a match to the suspect, might be open to challenge in court.

Amendment 7 would therefore insert into Clause 14 a mechanism to enable the police, very early in a case before any samples had been destroyed, to make an application to the local magistrates’ court to retain all the individual samples in a case for a period of 12 months. That should be long enough in the majority of cases to identify a suspect and complete the pre-trial disclosure process, as part of which it would be established whether the defence intended to mount a challenge to the derivation of DNA profiles and/or matches. If not, the material would be destroyed at that point.

If a suspect had not been identified at the 12-month point, or if the derivation of the profiles and/or matches was still in dispute, the police would be able to apply to the courts to retain the material for a further 12 months, with further such applications available until either the case was concluded or there was no need to retain it any longer. If at that stage a suspect had been identified and criminal proceedings were under way, Section 66 of the Courts Act 2003 would allow the trial judge to deal with the application to continue to retain the samples.

I emphasise to your Lordships that we anticipate this procedure being used in only a handful of cases each year, all of which must be serious crimes on the qualifying offences list. While biological samples will be retained following a successful application, those samples will be able to be used only in the case for which they are taken and no extra profiles will be retained on the National DNA Database.

Given that the concerns of prosecutors would also apply in respect of the prosecution of those arrested under the Terrorism Act 2000, we are making similar provision in Part 1 of Schedule 1.

I turn briefly to the other amendments in this group. Amendment 8 to Clause 17 is technical and confirms that material taken under the regimes in the International Criminal Court Act and the Terrorism Prevention and Investigation Measures Act is not subject to the rules in the Police and Criminal Evidence Act but to the rules in those Acts.

The amendments to Clause 18 make it clear that, in respect of a DNA profile, the responsible chief officer is the one whose force took the original sample rather than the one in whose force area the forensic science laboratory is located, while Amendment 14 to Clause 21 removes the definition of the phrase “law enforcement authority”, which is not used elsewhere in that clause.

Finally, I take this opportunity to give notice to the House that we are considering whether it would be helpful to clarify further the scope of the regime for the retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008. If we conclude that further clarification would be helpful, I propose to bring forward further amendments to Schedule 1 to the Bill at Third Reading. Naturally, I will give noble Lords proper notice of any such amendments, should they prove to be necessary.

I should have said at the beginning that, in moving Amendment 7, I was speaking also to Amendments 8, 9, 10, 11, 12, 13 and 14.

[Lord Rosser]

My Lords, I thank the noble Baroness for that explanation of the reasoning behind these amendments. I want to raise a question about a particular part of the amendment rather than to make any point in opposition to the amendments.

The amendments in this group appear to require the application to be made before a district judge in the magistrates’ court. Will the noble Baroness confirm what appears to be the case; namely, that an application could not be made before lay magistrates in the same court? I may be wrong, but if that assumption is right, will the Minister say why this is the case on this issue, since it does not relate, for example, to terrorist activity or threats to national security? As I understand it, the issue simply concerns the case for retention. Is it because there is an existing statute that already provides for this approach? Is it because it is considered that such applications will normally involve complex issues of law? Is it envisaged that such applications will normally be lengthy hearings lasting more than one day? Is it because lay magistrates do not want this responsibility? Is it a lack of confidence in lay magistrates? Or does the reference to “district judge” include lay magistrates? That may possibly be the explanation.

Will the Minister also say whether there is a district judge sitting at every magistrates’ court at which such an application might most conveniently be made; whether it is envisaged that a district judge will hear such applications on occasions outside court sitting hours, away from the court; and what will happen if the district judge who is down to hear the application is off sick on the day fixed for the hearing and, as is often the case, no other district judge is sitting at that magistrates’ court? Will the date for hearing the application have to be rearranged, or in those circumstances would arrangements be made for the application to be heard by a Bench of lay magistrates already sitting that day at the court in question? To cover myself, perhaps I should declare that I am a lay magistrate—but I am not asking these questions in order to tout for additional business.

[Baroness Stowell of Beeston]

My Lords, I will speak briefly on one aspect of the amendment that might be of interest to the noble Lord, in the hope that further advice might wing its way to me. It may be that the specification of a district judge might relate to the fact that the application by the police in the first instance would be ex parte. That may be why the application needs to be made to a district judge rather than to a lay magistrate. I can now confirm that the application will be only to a district judge, not to a lay magistrate, because it is an exception to a general principle requiring discretion, and is not to be used routinely. If no district judge is available, the application could be heard by a circuit judge if one is available. If after that explanation the noble Lord feels that I have not answered all his questions, I will follow up in writing.

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[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 ---

[Lord Henley]

My Lords, I note what the noble Earl, Lord Erroll, said in his concluding remarks and we will certainly look at whether any such biometric information should ever be made available outside school. He makes a perfectly valid point on that. Perhaps I might answer some of the points that have been made in the course of this debate, then move my own amendments. It will be open to noble Lords to consider what to do with their own amendments that have been grouped with this later on.

I start with the question of language, which my noble friend Lady Hamwee raised in Amendment 23. The amendment says that information provided by schools and colleges to parents and children on their rights under these provisions must be in a language capable of being readily understood by the parent and child. In response to the noble Earl, Lord Erroll, this is true of all information that is provided to parents, whether illiterate or not, and it is something that schools always have to take into account when trying to get to their parents. As I indicated in our deliberations in Committee, the Bill provides that parental consent must be informed and freely given. Schools and colleges should take steps to ensure that parents receive full information about the processing of their child’s biometric information.

I can give an assurance that the Department for Education will issue advice to schools on the provisions in this chapter of the Bill. That advice will include a template consent form for schools to use if they wish. As well as providing information about the type of biometric information to be taken and how it will be used, the advice and the template will refer to the right of parents and pupils to refuse or withdraw their consent and the duty on schools to provide alternative arrangements for those pupils whose information cannot be processed. We will encourage schools to follow the template that we have put forward.

With the aid of this advice, I hope that my noble friend will agree that we can trust schools and colleges to provide appropriate information in the appropriate manner to provide parents and pupils with the right information without the need for an express legal requirement of the kind set out in her amendment.

I turn to my noble friend’s Amendments 20 and 21, which are amendments to government Amendment 19 and seek to ensure that children will also be notified of the processing and of their right to object. We do not consider that an express statutory provision to this effect is necessary, as schools and parents should be trusted to inform children in an age-appropriate manner of what is being proposed, and to ascertain if the child has any concerns about the processing. The proposed government advice will highlight to schools the child’s right to object, and will recommend that parents are made aware of that advice.

I turn to the amendment in the name of the noble Lord, Lord Rosser. I was worried that his arguments were oversuspicious and, at some points, over-Jesuitical. He seemed to think that there was a hidden agenda, and at times I suspect that there was an element of him protesting too much in his objections to what we do. Having said that, I have a degree of sympathy for the arguments that he put forward.

The Government believe that, regardless of their age, all children should have the right to say no to the processing of his or her biometric information, even if that is an uninformed objection from a relatively small child. No child of any age should be coerced, physically or otherwise, to give his or her biometric information. We believe that it would be wrong to ignore the wishes and feelings of even a primary-aged child in this important matter.

[Lord Rosser]

If that is the Government’s view for a child of primary school age, is it also their view that if that child wishes their biometric information to be processed and their parents do not, the child’s view should likewise prevail?

[Lord Henley]

My Lords, I was going to come to that point. The two scenarios are different. This is why I thought that at times his arguments were positively Jesuitical, with one parent pushing one way, one pushing the other and the child possibly going down a third route, if there could be a third route. Why should one or the other prevail? We think it is right that if the parents say, “No, we do not want that”, that should be final. That is why we have tabled the amendments. Even if one parent objects, that should be it. However, because we believe that these things are important, we also feel that, even if the parents want the provision, it is right that the child can opt out, even if he or she is making an uninformed decision. There is a very big distinction between the two matters. That is why I was worried about the arguments that the noble Lord was putting forward. I believe there is little to be gained in overruling the child’s wishes and I am not aware of any specific evidence that—

EUC Report: Internal Security Strategy

Lord Rosser Excerpts

Thursday 19th January 2012 Lords Chamber

[Lord Rosser]

My Lords, in response to the comment of the noble Baroness, Lady Falkner of Margravine, while I cannot say that I am the third man, I am the third person down to speak in this debate who is not a member of the committee. I share the view of the noble Lord, Lord Hannay of Chiswick, on the lengthy delay in discussing the committee’s report, and that that is not a satisfactory situation. Having said that, I doubt that this is the first occasion there has been such a delay.

As has been said, each member state has responsibility for its own national security but the Lisbon treaty enhanced the European role by providing for the creation of a standing committee within the Council whose principal role is to ensure that operational co-operation on internal security is promoted and strengthened within the Union.

As we know, under the 1999 treaty of Amsterdam, work on justice and home affairs matters has been the subject of five-year programmes agreed by the European Council, with the most recent being the Stockholm Programme agreed in 2009, which indicated that both the Council and the Commission should define a comprehensive Union internal security strategy.

In early 2010, the Council agreed an internal security strategy for the European Union which was subsequently adopted by the European Council. Not to be outdone, the Commission formulated its own communication on the internal security strategy towards the end of 2010 entitled, The EU Internal Security Strategy in Action: Five Steps Towards a More Secure Europe.

As the noble Lord, Lord Hannay, said, in the report that we are discussing, the committee described the Council strategy as an anodyne document and hardly a strategy at all. In contrast, the committee described the Commission communication as having a practical and pragmatic focus on the five main objectives. They were referred to by the noble Lord and I shall not repeat them.

Accordingly, as the noble Lord said, the European Union sub-committee took this document—namely the Commission communication—as the main focus of its inquiry into the EU internal security strategy. We welcome the committee’s report and I wish to refer briefly to one or two points and issues in it.

The report indicates that the Commission’s communication will be followed by proposals from the Commission for legislation to implement its objectives. One had already been submitted before the committee’s report appeared, and given that we are now some eight months further on, it would be helpful if the Minister could update us as to where we stand in relation to further proposals emanating from the Commission.

The EU Committee comment favourably on the Commission communication as,

“the first pragmatic attempt to articulate a comprehensive approach to the EU’s internal security”,

and say that they,

“do not believe that these proposals intrude upon or threaten Member States’ primary responsibility for national security”.

That is an important point. The committee was critical of the written evidence received from the Home Office, which the committee regarded as stating that the Government would,

“criticise some Commission proposals solely on the ground that they go beyond what was agreed in the Stockholm Programme or the Strategy itself”.

The committee argued that over a five-year programme actions required to safeguard internal security may well move beyond what was originally envisaged, and that therefore each proposal should be assessed on its merits.

In his response, the Parliamentary Under-Secretary for Crime and Security refers to querying the costs of new proposals and goes on to say that ensuring that those proposals fall within the scope of the Stockholm Programme is key to managing the national and EU justice and home affairs budget. I hope that the Minister can provide assurance that despite that comment the Government will nevertheless assess on their merits any proposals that emerge.

The committee's report also refers to a Commission proposal for a comprehensive data protection framework that was due to be published last year. What is the current position in relation to this Commission proposal?

A further point made by the committee, to which my noble friend Lord Judd referred, was its surprise that there was no reference in the Commission communication to the Armed Forces in relation to civil protection and disaster relief. It is not clear from the written response by the Parliamentary Under-Secretary whether that surprise is shared to any degree by the Government, and perhaps the Minister can provide some clarification on that specific point. It is interesting that one of those giving evidence to the committee expressed the view that this omission was probably due to neurosis within the European Union about military matters.

The committee welcomed the emphasis on cybersecurity in the Commission communication and felt that the EU,

“could play an important part in raising standards and awareness in the Member States”.

In his response, the Parliamentary Under-Secretary welcomes the committee’s view that the EU institutions should take the lead by,

“ensuring the security of their own networks and agencies”,

and said that the UK would,

“support the EU institutions on security matters as appropriate”.

Perhaps the Minister could say whether the Government consider that the EU is doing as much as it should in this field, bearing in mind that what the EU does or does not do could also have implications for our national security as well.

The committee said that the establishment of a cybercrime centre, mentioned by the noble Lords, Lord Hannay of Chiswick and Lord Hodgson of Astley Abbots, would enhance the EU’s ability to contribute in this area and that,

“Europol would be best placed to host such a body”.

The view was also expressed by the committee that,

“finding staff with the necessary expertise may not be easy”,

and that:

“Additional staff and funding will be essential if the Cybercrime Centre … is to achieve its key aims”.

The committee went on to say—and the noble Lord, Lord Hannay, referred to this—that:

“The Government’s view that this can be done within existing resources is unrealistic, and inconsistent with their making additional resources available for the United Kingdom’s programme”.

Is it still the Government's stance that any necessary resources are to be found from within the existing budget? If so, why do they think that that is possible? Have there been any further developments in the creation of the cybercrime centre?

The committee's report contains a large number of conclusions or recommendations. The sub-committee involved, under the chairmanship of the noble Lord, Lord Hannay of Chiswick, has given the issue of the EU internal security strategy the thought that it merits. We should be very grateful for its meticulous and thorough report. Security is an issue of increasing importance and sophistication on the part of those trying to safeguard security and those seeking to breach it. As the committee states, security knows no borders, which is a significant reason why the EU has an important role to play.

However, we should also note the warning in the committee's report, repeated by the noble Lord, Lord Hannay of Chiswick, that the Council has an extraordinary number of committees, working groups and other bodies whose tasks overlap and may conflict. As has been said, there is now a new committee with the duty of co-ordinating all the work on internal security. As the sub-committee rightly states, unless it does so, little will be achieved, but that if it does properly fulfil its mandate—or, perhaps, is allowed properly to fulfil its mandate—the EU may play a valuable role in protecting the security of its citizens. One would have thought that the Government would concur with that view. If so, I hope that the Minister can confirm that the Government have that point in mind and are pursuing it within the EU.

We welcome the committee's report. It is an invaluable document. Like the noble Lord, Lord Hannay of Chiswick, I await with interest to hear the Minister's response to the points and questions put to the Government during the debate.

Protection of Freedoms Bill

Lord Rosser Excerpts

Thursday 12th January 2012 Grand Committee

[Lord Rosser]

My Lords, my noble friend Lord Wills has set out the objectives of the amendment, which seek to improve the delivery of a transparent and open system of government through the previous Government’s groundbreaking Freedom of Information Act. They are in line with the Government’s own pledge to improve and extend the drive for greater transparency. The Freedom of Information Act provided a mechanism for the Government to extend the scope of the Act, as my noble friend has already explained. By placing a duty on the Government to report annually on their activities to maintain or extend transparency through further designation of public authorities and on public authorities to report on their efforts to comply with the Act, the amendment will create a driver that will strengthen and adhere to the principles and purpose of the Act. I very much hope that we will hear a positive response from the Minister to the amendment.

[Baroness Stowell of Beeston]

My Lords, as my noble friend has already made clear this afternoon the Government are very committed to greater transparency and to making sure that the Freedom of Information Act introduced by the previous Administration operates as effectively as possible. That is behind our commitment to introduce post-legislative scrutiny of the Freedom of Information Act, which is now under way and being carried out by the Justice Select Committee.

As the noble Lord, Lord Wills, explained, Amendment 151B would place a duty on the Secretary of State to publish an annual report detailing the Government’s actions in relation to Section 5 of the Freedom of Information Act, which enables the Act to be extended to bodies performing functions of a public nature or providers of public services under contract. Amendment 151D proposes that public authorities are required to publish annual reports containing prescribed classes of information about their compliance with the Freedom of Information Act and environmental information regulations.

In relation to Amendment 151B, I fully appreciate the need for transparency in relation to the Government’s exercise of the power in Section 5 of the Freedom of Information Act. The Government are, and will continue to be transparent in this area. We have given advance notice of planned consultations under Section 5 and, of course, any order made under that section is subject to the affirmative procedure. We see no practical benefit in introducing a requirement to publish an annual report. I also agree with the sentiment behind the noble Lord’s Amendment 151D regarding the transparency of freedom of information activity. Public authorities should be accountable for their performance in respect of freedom of information requests and actions. However, I am not persuaded of the case for introducing a statutory requirement to publish an annual report along the lines proposed here. We need to be alert to the resource implications before placing any new burdens on public authorities. That said, I recognise that the transparency of freedom of information performance across the public sector is also something to which Parliament may wish to return, as I have already said, in the post-legislative scrutiny that is now under way. While I sympathise with the sentiments behind the amendment, in light of the fact that that post-legislative scrutiny will provide a forum for such proposals to be properly considered in the round, I hope that he will feel able to withdraw his amendment.

--- Later in debate ---

[Lord Wills]

My Lords, I am sure that the Minister and her officials heaved a heavy sigh when they saw these amendments on the Marshalled List, because they have seen them—or something similar to them—before, during the passage of the Localism Bill through this House. I made the detailed arguments for the amendments then and those arguments remain essentially the same, so I will not detain your Lordships for long by rehearsing them all again. However, the Government’s unsatisfactory response to my previous amendments has pushed me into tabling them again. There is no difference between us on the policy objective. The Government are committed to greater transparency. We all agree on the importance of that, so again I am baffled as to why the Government persist in producing such unsatisfactory reasons for resisting what I continue to believe are modest, practical amendments designed to realise their own policy objectives.

Amendment 151C deals with the information that the public can obtain under the Freedom of Information Act about the work done for a local authority under contract using the public’s money. This has become particularly important since the passage of the Localism Bill, which envisages that a growing proportion of local authority functions will be carried out by other bodies under contract. Under the Freedom of Information Act as it now stands, the public will be denied the access that they currently have to increasing amounts of information about local authority functions discharged on behalf of the public, for the public, using public money. This amendment would ensure that the public retained at least some of that access to information about those functions, even when they were subcontracted to private sector companies. The amendment is proportionate. Very small businesses would not be caught by it, as there is a limit of £1 million on the size of contract that would be covered by it. The Freedom of Information Act and regulations already contain exemptions to protect the legitimate interests of business, trade secrets or information likely to prejudice commercial interests.

Why do the Government resist this? There is no good reason that I have yet been able to discover. The Minister, the noble Lord, Lord McNally, said that the Government are committed to reducing the regulatory burden on business. I agree that that is a desirable commitment, but it is not in all circumstances an overriding one. Of course, businesses find regulations irksome and burdensome, but Governments still impose them in the public interest. The Government are doing it now with the banking sector, for example. The noble Lord, Lord McNally, then said that he does not want to deal with transparency issues piecemeal but would rather look at this after post-legislative scrutiny of the Freedom of Information Act. We have heard that argument for resisting amendments many times this afternoon. I understand the reasons for it—it is commendable that the Government are doing this post-legislative scrutiny—and it might be a plausible argument for resisting this amendment were it not for the fact that the Government have already done what the Minister said that they should not do. In other words, they have dealt with the issue of transparency in local government piecemeal, pre-empting the results of post-legislative scrutiny of the Freedom of Information Act. They have done that through the passage of the Localism Bill which has the effect not of increasing transparency for local authority functions but of restricting it. If they were to follow their own logic, they would not have put through the Localism Bill in that way, pre-empting the results of post-legislative scrutiny.

All this amendment does is to seek to maintain the status quo—not to deal with it piecemeal by extending or restricting it—for public access to information about local authority functions carried out on the public’s behalf using public money. I really cannot see any good reason for resisting this amendment and I hope that the Minister will no longer do so. I live constantly in hope.

Much the same arguments apply in support of Amendment 152A, which would bring companies controlled by local authorities within the scope of the Freedom of Information Act. Again, there have been exchanges on this and the Government previously rejected it on the grounds that it would, “create uncertainty” for requesters about the coverage of the Act,

“given that companies could pass in and out of transfer of shares”.

As I said previously, I agree that there might occasionally, if not often, be some such uncertainty. These transfers of shares are not a frequent occurrence, as the Minister will be aware, but this sort of thing can easily be clarified. It hardly constitutes a compelling argument for keeping secret from the public important information about how their money is spent.

Clearly, when the noble Lord, Lord McNally, was making this argument he must have recognised that it was not altogether compelling because he then tacked on another argument on the back of it. His letter said:

“Where a company is only partly owned by the public sector, there is an increased likelihood that areas of its business will be unrelated to the public sector”.

Of course that is true, but again it is not a reason for keeping secret from the public those areas of business which are paid for by the public and operate on their behalf. I know that there are very clever officials advising the Minister, and very clever lawyers advising Ministers as well. They are perfectly capable of drafting this amendment better than I have been able to do to cover this eventuality. I hope that the Government will extend transparency and ask their officials and lawyers to get drafting. I beg to move.

[Lord Rosser]

My Lords, once again my noble friend Lord Wills has set out the purpose of these amendments. As he has said, one of them extends the duties under the Freedom of Information Act to a public authority, including local authority services which have been contracted out, where the contract made by a public authority with any person is for any sum over £1 million. The second amendment extends the definition, as he said, of a publicly owned company for the purposes of falling within the terms of the Freedom of Information Act to extend to companies where at least 50 per cent of their shares are held in public ownership—that is, by one or more relevant authorities.

One point that my noble friend homed in on has been the desire of this Government to move more and more activities away from being directly provided by public authorities, including local authorities—he referred to the Localism Bill—and instead to see them contracted out. Yet when they are contracted out in this way into the private sector, it removes the access to information which is currently there through the Freedom of Information Act. On the one hand, then, we have a Government who say that they want to increase transparency and, on the other hand, through Bills such as the Localism Bill we find that on issues and activities where it was formerly possible to obtain information under the Freedom of Information Act when a public authority, including a local authority, was undertaking them, it will no longer be possible to get that information. The Public Bodies Bill was another Bill which will encourage this move.

Unless the Government are prepared to indicate some sympathy with this amendment and to look at going down this road, at least to accept the amendment’s spirit if not its direct terms—and, as my noble friend has said, not to try and fob everybody off by saying, “Well, there is post-legislative scrutiny taking place”, because nobody knows how long that is going to take—then I suggest that their claims to want to extend transparency are somewhat hollow, since their own activities as a Government are reducing that level of transparency.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I support the thrust of the two amendments, or either of them. As the noble Lord, Lord Wills, has said, it is important to give the official who is tasked with applying the legislation the tools to do the job properly. After all, he and his office are in the best position to analyse where the obstacles are. This is a clear problem and he has been clear about the need for a solution. I hope we use this opportunity—I do not like the jargon—to add to the toolbox.

[Lord Rosser]

I support the amendments. I certainly do not intend to explain the purpose of them because my noble friend has already done that. The key point is that it is the view of the Information Commissioner, based on his or her experience, that there should be the opportunity, if necessary, to have cases heard at the Crown Court. Obviously, this relates to the severity of the fine that can be imposed because there is a restriction if a case is dealt with in the magistrates’ court. The issue of the timescale within which proceedings have to be initiated has also been raised.

I hope the Government will be able to give a sympathetic response, not least because the amendments are based on views that were expressed, I think in evidence to the Justice Select Committee on 13 September last year, by the Information Commissioner and the changes that that individual felt were necessary in the light of experience.

EUC Report: Money Laundering

Lord Rosser Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Rosser]

My Lords, I, too, thank the noble Lord, Lord Hannay of Chiswick, and his committee for this report. It is clear from what he said that there has been some helpful progress over the past few months, and I hope that the Minister will be able to provide an update on exactly where we are now in relation to the Information Commissioner’s recommendations and the committee’s recommendations. As has already been said, the number of suspicious activity reports is considerable and appears to be growing by more than 500 a day, with nearly 2 million entries on the database.

As the noble Lord, Lord Hannay, said, this is the second recent report on money laundering. The first, in 2009, contained a recommendation that,

“The Information Commissioner should review and report on the operation and use of the … database, and should consider in particular whether the rules for the retention of data are compatible with the jurisprudence of the European Court of Human Rights”.

The second report, which we are considering tonight, includes the report from the Information Commissioner and the reiterated recommendation from the committee’s first report that,

“consideration should be given to amending the Proceeds of Crime Act 2002 to include a de minimis exclusion”,

which arises from the committee’s concerns about the requirement to report suspicions about the commission of trivial criminal offences and now the commissioner’s doubts about the justification of reporting transactions where there is a very low level of suspicion.

In their two letters of response in May and June this year—I do not know whether there have been further letters—the Government, as did the previous Government, rejected the introduction of a de minimis requirement,

“primarily due to the opportunities for criminals to exploit the threshold of any de minimis approach based on either the value or the seriousness of the crime”.

The Government state in their response that:

“Reports on the laundering of small amounts can and do help in identifying and tackling serious crime”.

That may well be the case but, when he responds, can the Minister provide some evidence to back up the statements in his department’s response of 17 May this year about the de minimis threshold?

The committee says that it is of the belief that,

“the Information Commissioner’s report justifies our view that the … database is not fully compliant with the Data Protection Act and the Human Rights Act”.

A considerable amount of information has to be provided, ideally in a suspicious activity report—namely, the subject’s full name, date of birth and addresses, as well as subject details, such as national insurance number, vehicle registration, driving licence, passport and phone numbers, website addresses, details of occupation and employer, details of any associates of the subject, and company details, including full legal name, designation, country of incorporation and contact details. The list does not end there.

Each suspicious activity report was assigned a deletion date of 10 years after receipt and was automatically deleted unless it had been amended or updated, in which case the deletion date was reset to six years following that event. There is also a procedure for earlier deletion of individual SARs where all necessary activity relating to an SAR has been undertaken, but it does appear that only a relatively small number of SARs compared with the total number have been permanently deleted from the database, although I understand from what the noble Lord, Lord Hannay, has said that some further progress appears to have been made in this regard.

The Information Commissioner queried whether there was any evidence of the value of data over time, such as SARs, being accessed which had been on the system for, say, longer than five years. Evidence was provided of the number of times that SARs received in 2004 or earlier were accessed by end-users during each month in 2009. What the figures showed was that the number of checks dropped substantially when records were over seven years old, and in addition it is possible that some of the older hits could have occurred when searching on similar names and not because of concerns about unlawful activity by that person. The Information Commissioner was not satisfied that there was currently sufficient evidence to support the long-term retention of SARs of no concern, and it raised concerns about compliance with the Data Protection Act.

Indeed, the committee was apparently also concerned that SARs were routinely retained for 10 years on a database to which there was wide access, especially in those cases where it could be shown that the initial suspicion was unfounded. The committee referred particularly to,

“the ruling of the European Court of Human Rights that the retention on the DNA database of the DNA of persons not convicted of a criminal offence could amount to a breach of their right to respect for private life under Article 8 of the European Convention on Human Rights”.

While, as I understand it, the Serious Organised Crime Agency has been considering this point with the Information Commissioner, does the Minister feel that there is any conflict between the Government’s intended change in policy on retention of DNA and the current revised policy, as I understand it, on retention of SARs as mentioned by the noble Lord, Lord Hannay of Chiswick—particularly bearing in mind the extent of information retained about an individual and their associates?

In his letter of 24 June of this year responding to the committee’s report, Mr James Brokenshire, the Parliamentary Under-Secretary for Crime and Security, said that he would provide an update on progress being made by the SARs committee towards the end of this year. Can the Minister say what progress has been made by this committee in seeking to improve the effectiveness of the regime, including considering whether legislative changes are necessary?

Apart from the committee’s own inquiry there has been very little in the way of post-legislative scrutiny of the relevant legislation that introduced the requirement to report suspicions over financial transactions to the Serious Organised Crime Agency. The law focuses on reporting, but there are no additional safeguards on the face of the legislation to prevent a disproportionate retention or to prevent reporting of cases likely to be of little, or indeed of no, interest. It seems that the Information Commissioner’s view is that any legislation which engages significant privacy concerns should include on the face of it a requirement on the Government to report to Parliament on how the measures have been deployed, including evidence of the extent to which the expected benefits and possible risks have been realised in practice, and the continued need for the measures in question. I simply ask the Minister: what is the Government’s view on that point?

The committee’s report also states that it is estimated—and I think I have got the figures right—that between 125,000 and 175,000 businesses could be subject to the SARs reporting requirements, but that apparently only approximately 5,000 actually report. No doubt there may be good reasons for that, but could the Minister say what interpretation the Government put on this piece of information and whether any checks are done to ensure that those who are subject to the reporting requirement are actually carrying out their responsibilities if they have suspicions of potentially questionable financial transactions?

The committee concludes its report by repeating its view that the Information Commissioner’s report justifies the view that the database is not fully compliant with the Data Protection Act and the Human Rights Act. It goes on to say that it looks forward to hearing from the Minister what steps the Government and SOCA will take to comply with the commissioner’s recommendations and the committee’s recommendations. As I said at the beginning, clearly some progress has been made on these issues over the past few months, but I hope that tonight the Minister will provide an updated response to the committee.

Justice: Evidence

Lord Rosser Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Henley]

My Lords, it is not for me to pronounce on the problems that the group is having. As my noble friend knows from his distinguished service on this group, the membership has changed not once but twice over the last year or so. There are difficult issues to be addressed. I know that it came forward with one model, and there were problems with that, but I think my noble friend will accept that trying to get the right balance, to which I referred in my first Answer, between advantage, costs and risks is a very great challenge and one that we want that group to get right.

[Lord Rosser]

I am not clear from the Minister’s answer whether the Government have a view on this issue or not. In light of the remarks made by the Lord Chief Justice in relation to the ECHR decision to which the noble and learned Lord, Lord Lloyd of Berwick, referred, do the Government take the view that there appears to be no insurmountable obstacle in principle to the use of intercept evidence, or are our intelligence services still voicing significant concerns on this issue?

[Lord Henley]

There are obviously significant concerns about using intercept as evidence. It can be very useful as intelligence, but using it as evidence can create significant problems. We want to address those problems and make sure that we have got it right before we allow intercept to be used as evidence. That is why the previous Government set up the review under Sir John Chilcot and why we are continuing to look at the work that it is doing and looking forward to its report in due course.

Protection of Freedoms Bill

Lord Rosser Excerpts

Thursday 15th December 2011 Grand Committee

[Lord Scott of Foscote]

My Lords, I am in general sympathy with the objective behind this amendment but have some anxieties about the effect of subsections (9) and (12), which mirror one another in similar language. They seem to say that the question of whether a communication has been made with the intention of furthering a criminal purpose is to be determined in accordance with regulations or provisions made by the Secretary of State. Whether a particular communication is protected by privilege or that privilege is forfeited because the purpose of the communication was to further a criminal purpose is the sort of issue that could easily come up in legal proceedings before an ordinary court. On this notion that the Secretary of State could pre-empt that, I note the language,

“make provision for the determination (on an application for an”—

interception warrant, which I can understand—

“or otherwise)”.

That “or otherwise” seems to carry the power right through to legal proceedings where the question of privilege is an issue. I would like some elucidation on the intention behind these two subsections.

[Lord Rosser]

My Lords, I will be brief because the noble Baroness, Lady Hamwee, has gone over the thinking and reasoning behind this amendment, which, as she said, emanated from the Bar Council. She referred to the House of Lords judgment which appeared to hold that RIPA permitted the covert surveillance of meetings between defendants and their lawyers even though no express provision in the Act authorises it and such actions were regarded as contrary to the Police and Criminal Evidence Act 1984. The noble Baroness also referred to other developments, such as the undercover police officers who infiltrated protest groups and maintained their cover while fellow protestors were prosecuted and tried for offences. In one of those cases, I think I am right that significant non-disclosure of the officers’ role led to a number of overturned convictions and cases dropped against other campaigners. The Lord Chief Justice also expressed disquiet that an undercover police officer might have been party to legally privileged communications between the defendants and their lawyers. I suppose that the concerns of the Lord Chief Justice were confirmed in the case related to DC Boyling when it was revealed that he had indeed attended meetings with the defendant and his solicitor.

As the noble Baroness said, the Government made a partial response to the House of Lords judgment on the McE case by making two orders, one relating to direct surveillance and the other to covert human intelligence sources. Clearly, as the noble Baroness said, that has not addressed what the Bar Council regard as the fundamental problem. In making those comments, we want to hear the Government’s response to this amendment. Clearly, there are concerns—probably highly justifiable ones—about others having access to communications between a defendant and his lawyers. One suspects that it is perhaps a case of recent developments leading to RIPA being interpreted in a way that was probably not intended. We want to hear the Government’s response since they may well argue—we wish to hear the case—that the Bar Council amendment would not be appropriate. Equally, it might turn out that they will accept it.

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Moved by

[Lord Rosser]

130: After Clause 38, insert the following new Clause—
“Clarification of unlawful interception under RIPA
(1) After section 2(7) of the Regulation of Investigatory Powers Act 2000 (meaning and location of “interception” etc) insert—
“(7A) The fact that the intended recipient has collected or otherwise accessed such stored communication, shall not affect the definition of communication in transmission under subsection (7).””

[Lord Rosser]

My Lords, this amendment is a response to calls from both the Director of Public Prosecutions and the former Assistant Commissioner of the Metropolitan Police to clarify the law in respect of the illegal interception of voicemail messages. The amendment seeks to clarify the definition of interception in the context of Section 1 of RIPA to mean that those who access the voicemail of individuals without their knowledge or consent will be liable to prosecution, even if the intended recipient has already accessed the messages.

In his evidence to the Select Committee on Culture, Media and Sport on 24 March this year, the then acting Assistant Commissioner of the Metropolitan Police, John Yates, stated that the reason he had initially advised the committee in September 2010 that only 10 to 12 victims could have cases brought for them in relation to alleged phone hacking was the,

“very prescriptive definition of Section 1 of the Regulation of Investigatory Powers Act”,

which deals with the illegal interception of voicemail messages. Of course, we now know that there are potentially thousands of cases where voicemail messages have been accessed and listened to without authorisation. However, to prove the offence of interception under the section, Mr Yates maintained that the prosecution had to show that a voicemail message had been intercepted prior to it being listened to by the intended recipient. In response to the evidence given by Mr Yates, the Director of Public Prosecutions wrote to the Select Committee on Culture, Media and Sport in April of this year to clarify the opinion of the Crown Prosecution Service on this issue. He told the committee that in 2006 in relation to the investigation of, I think, Messrs Goodman and Mulcaire, the CPS initially advised the Met that:

“The offences under Section 1 of RIPA would, as far as I can see, only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this”.

Furthermore, the DPP stated that the view of the CPS at the time was that it regarded the question of whether or not the unauthorised accessing of a voicemail message after the recipient has collected the message is a RIPA offence as a difficult legal issue which had not been tested or authoritatively determined; that there were tenable arguments either way; that the observations made by the noble and learned Lord, Lord Woolf, in 2002 of NTL Group Limited versus Ipswich Crown Court pointed to a narrow view; and that it approached the prosecution on the basis that if the issue of interpretation arose, it could be preferable to proceed on a narrow interpretation, thereby avoiding the necessity of having a contested trial.

The letter from the DPP in April noted the following points. First, no concluded or definitive view was ever reached, and from the outset the head of the CPS special crime division indicated that the interpretation is,

“very much untested and further consideration will need to be given to this”.

Secondly, that,

“the prosecution was never required to, nor did it, articulate a definitive view of the law … in the case of Messers Goodman and Mulcaire”.

Thirdly, in his view,

“the legal advice given by the CPS to the Metropolitan Police on the interpretation of the relevant offences did not limit the scope and extent of the criminal investigation”.

That final point is based on the advice given by the CPS to the Met that the case could have been prosecuted under other offences, including the Computer Misuse Act. However, the Met was apparently reluctant to bring a prosecution under that Act. It has been suggested that that was for tactical reasons, but I do not know whether that was the case. Whatever the situation may be, it does not detract from the need to clarify the law on arguably the most relevant offence under RIPA. We believe that a clarification in the law is needed to make it clear that an offence of illegal interception of voicemail messages applies regardless of whether that message has been listened to by the intended recipient. Our amendment would provide that clarification and I hope that the Minister will take this opportunity to provide such clarification. I beg to move.

[Lord Henley]

My Lords, the noble Lord, rightly, is looking for a degree of clarification, as suggested in his amendment. I do not think that we need clarification, and it might be helpful if I set out the case.

First, let me be clear that phone tapping or hacking is illegal. As the noble Lord made clear in his opening remarks, it remains illegal—I want to emphasise this—even if the intended recipient has access to that communication. I am aware of some of the concerns and the point was addressed directly by the DPP in the written evidence to the Home Affairs Select Committee in October last year. He stated that his advice to the police and the CPS would be to assume that,

“an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it”.

The recent Home Affairs Select Committee report, following its inquiry into unauthorised tapping or hacking of mobile communications, signified the particular importance of Section 2(7) of RIPA and that not enough attention had been paid to its significance. The committee did not recommend that Section 2(7) be amended. As Members of the Committee will be aware, we also have the Leveson inquiry, which is looking at a number of issues related to phone hacking. The first part of the inquiry, which is already under way, is focusing on the role and conduct of the press. The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers and the way in which management failures have allowed it to happen. The original police investigation and its failings, the issue of corrupt payments to police officers, and the implications of all this for relations between police and the press will also be considered as part of the second part of that inquiry.

As the noble Lord will be aware, there are a number of other inquiries and investigations in hand and the police investigation into allegations of phone hacking continues, which I referred to in the Chamber only the other day in answering a Question. We believe it to be most appropriate, which I think the noble Lord would accept, to await the outcome of these various inquiries to know just what has happened, and so on, and to examine the conclusions before considering any changes to the law in this area. Further, we consider that the meaning of Section 2(7) is clear and that there are sufficient penalties in place to deal with offences of unauthorised interception. I refer the noble Lord back to the advice of the DPP to the CPS prosecutors. I hope that the noble Lord will accept that that deals with his points and that it is probably best to wait for the outcome of all those reports before he, we or anyone goes further.

[Lord Rosser]

My Lords, I thank the Minister for his response. I am not as convinced as he is that the present legislation is entirely clear because the events to which I referred would suggest that in certain fairly key quarters there appears to be some confusion over the current position. I do not mean confusion as far as the Minister is concerned, but I did refer to the police and the evidence that had been given. I am not entirely surprised that the Minister made reference to inquiries currently being undertaken. If I can take it from what he said, which I am sure I can, if those inquiries suggest that there is any lack of clarity in the present legal position, or even if the inquiry does not think there is a lack of clarity but nevertheless it would be helpful if the wording in the legislation were firmed up so that no one else could be in any doubt, that is the road that the Government will go down to end any confusion there might be on anyone’s part. On the basis that the Minister agrees that that will be the Government’s response—

[Lord Henley]

I do not know whether the noble Lord wants me to intervene to confirm that that is exactly the case. Obviously, we are awaiting the results of those inquiries, and it would be wrong for us to jump before that. Whatever they recommend will be something that the Government will have to consider with great care.

[Lord Rosser]

In that case, I beg leave to withdraw the amendment.

Amendment 130 withdrawn.

Protection of Freedoms Bill

Lord Rosser Excerpts

Tuesday 13th December 2011 Grand Committee

[The Deputy Chairman of Committees (Lord Haskel)]

I have to tell your Lordships that, if Amendment 85 is agreed, I cannot call Amendments 86 to 88 because of pre-emption.

[Lord Rosser]

My Lords, we have four amendments in this group: Amendments 86, 89, 93 and 96. Amendments 86, 89 and 93 would simplify requirements for consent for the processing of biometric information. In particular, Amendment 86 would establish an opt-out rather than an opt-in system and remove the requirement for both parents to consent; instead, it would require notification from just one parent to withdraw consent. Amendments 86 and 89 remove the current provision allowing children of any age to override parental consent, and instead permit only children above the age of 16 to object. Amendment 93 makes consequential changes to requirements for parental consent while—although I will leave this to the end—Amendment 96 establishes a new duty upon schools to consult the views of teachers, parents and pupils before introducing biometric recognition systems into schools.

Our amendments in this group, as I have said, seek to simplify requirements around consent for schools and to prevent new rules from rendering costly, high-tech equipment in schools defunct. There are apparently no official figures on how many schools use biometric systems, but there are estimates. There was an estimate in a House of Commons Library note earlier this year that 30 per cent of secondary schools and 5 per cent of primary schools use them. Perhaps the Minister could tell us what he thinks the figures are.

The Home Secretary’s description of the Bill's provisions as a double lock on the processing of biometric information in schools is a tellingly accurate reflection of the regulatory bulwark that schools will in future come up against in order to use existing biometric processing systems. By requiring both parents of every child to provide written consent, the Government are creating a potential bureaucratic nightmare for schools that use these systems. In the words of the Association of School and College Leaders:

“What is proposed here is a very burdensome and bureaucratic new regulation that will address no significant problem. In short, it is exactly the kind of legislation that the present government promised to repeal, not enact”.

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[Lord Henley]

My Lords, my noble friend Lady Hamwee suggested that I should not talk about feed-in tariffs and solar panels, and I am tempted to follow her suggestion on that. I used to speak a great deal on those issues in my previous job, but I do not often do so now that I am in the Home Office. I am not sure that they are quite relevant to this debate. Possibly we ought to have a new award for relevance in amendments—we could call it the Lord Rosser award for relevance—and I could congratulate the noble Lord on winning the award on this occasion for bringing in feed-in tariffs and solar panels.

[Lord Rosser]

I am sorry if the Minister could not understand the point, but I quoted from one of the leading providers of this technology in schools who said that there had not been proper consultation or clear thinking about the consequences of the new policy. My point was that that lack of proper consultation or clear thinking about the consequences of a new policy seems to have become a feature of this Government, because that is precisely what happened with the new feed-in tariffs. I am sorry if the Minister cannot understand the relationship between the two.

[Lord Henley]

My Lords, as regards consultation, we consult till the cows come home in this department and every other department, and I am distinctly happy about the amount of consultation that has taken place on this issue. We will move on now from feed-in tariffs and solar panels and get on to the gist of the amendment.

My noble friend Lord Lucas is obviously not completely convinced that there is a need for parental consent at all, but accepts that he could be persuaded as long as, as I understand him, it is not overburdensome. That point is probably behind the amendments from the noble Lord, Lord Rosser, and others. By the way, the noble Lord, Lord Rosser, did ask in passing for confirmation of the figures he used, and I can confirm, if I heard them correctly, that he is broadly right. Our figures are that some 30 per cent of secondary schools and some 5 per cent of primary schools are making some use of biometric systems for dealing with matters which, again one ought to stress, are largely related to access to school dinners, libraries and that sort of thing—so not major matters that affect them in other ways.

My noble friend obviously needs a degree of persuading about these matters. It is probably best if I go through the amendments in the appropriate order. I will deal with them in an order that I will take rather than as they are set out, but possibly I will leave Amendment 85, the first of my noble friend’s amendments, which even he described as being garbled; it is possibly best if I say little about that. I think my noble friend will understand why I take these a little out of order. I will start with Amendment 88.

Amendment 88 would have three consequences. First, it would obviously narrow the definition of who is a parent for the purposes of these provisions. Secondly, it would change the scope of the requirement for consent in that only one parent will need to consent. Thirdly, it seeks to introduce legal protection for schools and colleges where a child’s biometric information is processed beyond the control of that school or college. I will begin by addressing the first and third effects of that amendment.

For the purposes of these clauses, a parent means the child’s mother, father or any other individual who has parental responsibility for the child. Where it is not possible to obtain consent from any such persons, the parent is the person who cares for the child, unless the child is accommodated by a local authority or some voluntary organisation, in which case consent will be needed from that authority. My noble friend’s amendments obviously narrow this definition to include only individuals with parental responsibility. This would mean that, where there is no individual with parental responsibility who is able to consent, a school or college would be able to process a child’s biometric information without any person providing consent. I am sure that is not my noble friend’s intention, and he would probably want to adjust his amendment if he comes back to it—and I see my noble friend nod. The Government believe that all children, whatever their care arrangements, deserve the same level of protection in relation to the use of their personal information by a school or college. That is why we believe it is right that the definition of a parent goes wider than that suggested by my noble friend. Again I see my noble friend nod, and if he wants to come back to that he will no doubt amend his amendment.

The third element of this amendment seeks to provide protection for schools and colleges where a child’s data are processed outside of the control of the school or college. I know that my noble friend is concerned that these provisions should not apply when pupils access commercial websites or software systems that use face recognition to control access. I can give reassurance to my noble friend that the provisions in Clause 26 cover only the processing of biometric information that is carried out by, or on behalf of, the school or college.

Let me move on from Amendment 88 to the alternative approaches suggested by my noble friend in Amendments 85 and 87. It is also appropriate to consider here Amendments 86 and 89, from the noble Lord, Lord Rosser, which address a similar point and which I think my noble friend said he possibly preferred to his own. All those amendments seek to adopt a different approach to consent. At their most radical, they seek to replace the opt-in arrangement provided for in the Bill with an opt-out process. As a variant of this, they seek to provide for consent to be given by a single parent. Given the sensitive nature of the data involved, a positive decision should be made by both parents. This approach would afford them the opportunity to act on any concerns that they may have about the use of their child’s biometric information. In the vast majority of cases I would expect parents to discuss the issues between themselves and reach some agreement. As those of us who are parents will know, that is not always necessarily possible but, in the main, parents can reach that conclusion among themselves.

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[Lord Henley]

I accept that there can be a problem with inertia. It is what one might refer to as the “cheque is in the post” syndrome. People say that they are doing things and they do not. I suspect that we have got it right, but I am more than happy to have a further look at this if the noble Lord thinks that there will be concern over that. But this is something that schools are already doing a great deal about in terms of consulting or talking to their parents, and it is something that schools are used to. But perhaps we could talk about that at some later stage or between now and another stage.

[Lord Rosser]

The Minister has raised a number of issues, but could he confirm that under the Government’s proposals a child of five could say no, even though the parents had said yes, and it would be the view of the child of five that prevailed? If a 15 year-old agrees and one parent says no and one says yes, will the Government then seek to uphold the right of the 15 year-old? Also, he said that under my proposal the 15 year-old would be dragged kicking and screaming. Could he just confirm that school teachers are not allowed to use force against pupils, or has the government policy changed?

[Lord Henley]

Government policy has not changed, and the noble Lord will accept that the words I was using were metaphorical.

[Lord Rosser]

Careless.

[Lord Henley]

Careless words they may be, as the noble Lord is saying, but I will go on using them. The simple fact is that he was suggesting you would force a child to be registered. How is he suggesting that that could be done other than by dragging the child kicking and screaming? We think that it is right at any age. I think that it would be rather unusual for a child of five to say that he was not going to do something when his parents insisted that it should be done.

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Moved by

[Lord Rosser]

99: Clause 29, page 22, line 7, leave out subsection (1) and insert—
“(1) The Secretary of State must establish an independent inquiry into the use of surveillance camera systems in England and Wales.
(1A) Having considered the recommendations of that enquiry, and following a report on those recommendations to Parliament, the Secretary of State must prepare a code of practice containing guidance about surveillance camera systems.”

[Lord Rosser]

Amendment 99 would place a duty on the Secretary of State to commission a full independent inquiry into the use of surveillance camera systems in England and Wales, as recommended by the House of Lords Select Committee on the Constitution, which also recommended statutory regulation. Amendment 110 would require a similar inquiry before any steps were taken to extend the code of practice into the private sector, as provided for by Clause 33(5)(k).

In its evidence to the Public Bill Committee, the Association of Chief Police Officers questioned the assertion that there are 4.2 million CCTV cameras in the UK, as is commonly cited, estimating that the figure was much closer to 1.8 million. Such wildly different estimates indicate the lack of information that exists on the extent and nature of closed-circuit television cameras and surveillance systems in this country. Where real evidence and information are lacking, misinformation will often move in to fill the gap.

The code of practice that the Government seek to introduce would place additional regulatory burdens on cash-strapped local authorities that could see a reduction in the use of CCTV technology and in the detection and apprehension of crime by the police. Yet a fundamental assessment of the extent and varying nature of CCTV use in the UK and its value has not been undertaken. My noble friend Lady Royall of Blaisdon, whose name is also on the amendment, visited Stevenage last month to see the hugely impressive system developed by the council there for the safety and security of residents. The idea that these surveillance systems should be targeted for further regulation is surprising.

--- Later in debate ---

[Lord Henley]

The noble Lord has me there at the moment because I cannot assist him. We will be discussing further commissioners in due course. As regards the number that are registered, the noble Lord is ahead of me because he has seen that answered by one of my predecessors. I prefer to write to my noble friend about the details of his inquiry. Perhaps we can have further discussions between now and Report.

[Lord Rosser]

My Lords, the Minister said that his concern is about delay, and I will come back to that in a moment. If that is his concern, it does not explain why he does not accept Amendment 110, which relates to the private sector and those who may be covered by Clause 33(5)(k), since there is no intention at the moment of introducing it into these areas, and therefore it would be possible without causing a delay to agree to an inquiry there. I take it that in view of the fact that the Minister has not accepted it in relation to Amendment 110, it is a fundamental objection to an inquiry, not simply about delay, because Amendment 110 would not result in a delay.

[Lord Henley]

That is not the only aspect. There is also the cost. The noble Lord has not said who is going to pay for this inquiry.

[Lord Rosser]

If the Minister would care to tell me how much he thinks it is going to cost, perhaps we could discuss that issue and look at some of the other things that the Government are spending money on.

Our concern is that the code of practice—when it is drawn up, and we have not seen it yet—will act as a deterrent and prove to be something of an exercise in bureaucracy and additional cost. Additional cost is obviously an issue that is of considerable concern to the Minister. We do not sense that this Government look particularly favourably towards CCTV and that that may be one of the motives behind this proposal. We do not know, and the Minister has not told us, what the code will contain or what its impact will be on the use of CCTV. He has remained silent on that issue. The advantage of an inquiry is that it would show the extent or otherwise to which CCTV is being abused, and the Minister referred to that, so clearly he considers it an issue. It would also identify quite clearly the advantages and disadvantages of CCTV and what it has achieved, because some of us think that it has achieved a not inconsiderable amount. At least when the code was being drawn up, it would be drawn up against the background of a proper inquiry having taken place and looked at some of the allegations that are made. Therefore the code would be relevant and would address hard evidence instead of views or perceptions, and it would also make sure that the code would not in any way go over the top. That is why we are putting forward this proposal.

We note that the Minister has rejected it. He said that it was on grounds of cost as well as delay and had to agree that Amendment 110 would not cause any delay. Our argument is that when he draws up his code of practice, it may well lead to additional costs and a reduction of CCTV in areas where it would be beneficial for it to continue. However, we note what the Minister said. I will not pursue that matter any further at this stage, and I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

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Moved by

[Lord Rosser]

114: Before Clause 37, insert the following new Clause—
“Independent inquiry into use of investigating powers under RIPA
(1) The Secretary of State must establish an independent inquiry into the use of investigatory powers under the Regulation of Investigatory Powers Act 2000.
(2) The inquiry will examine in particular the use of directed surveillance and possible limits to its use.
(3) The inquiry will examine possible exemptions to the Act relating to the under-age sale of alcohol and tobacco and anti-social behaviour.
(4) Recommendations from that enquiry shall be reported to Parliament.”

[Lord Rosser]

This amendment relates to investigatory powers under the Regulation of Investigatory Powers Act 2000. On reading the Government's impact assessment, one could perhaps be forgiven for being a little puzzled about the need that Clauses 37 and 38 seek to address, because the assessment says:

“The coalition is committed to stop local authority use of RIPA … unless it is for serious crime and approved by a magistrate”.

It goes on:

“This stems from perceptions that local authorities have misused RIPA powers particularly in relation to low level issues”.

Thus we appear to see in this Bill that the Government are happy to spend money on the basis of perception, as their impact assessment states, rather than any proven need—despite their stating that money is in short supply. The cost of judicial approval for local authorities to use powers to gather communications data and undertake direct surveillance is apparently £250,000 a year, according to the Interception of Communications Commissioner. Yet we have a situation where the Government claim that they are acting to address public perception.

In his evidence to the Public Bill Committee as head of the independent Review of Counter-Terrorism and Security Powers, the noble Lord, Lord Macdonald of River Glaven, while supporting the requirement for judicial review, stated:

“The overwhelming preponderance of evidence gathered by the review showed that local authorities were using their powers quite proportionately and in quite important areas of business”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 27.]

The Interception of Communications Commissioner stated in his evidence that judicial review is,

“wholly unnecessary and will cost money”.

He continued that he had,

“audited a very large percentage of the applications over the last six years and there is simply no evidence of abuse, so there is no problem on which to spend £250,000 a year”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 37.]

In the main, these powers are used for investigating matters such as the sale of alcohol and tobacco to minors, antisocial behaviour, trading standards breaches, serious fire safety breaches and such issues. The amendment proposes that the independent inquiry that it provides for should look at exempting the RIPA powers in relation to underage sale of alcohol and tobacco and antisocial behaviour from this Act because they are areas where those powers are most frequently used and where the adverse impact and additional costs under the Bill will be most keenly felt. We are not opposed to the principle of judicial review, since this provides a check on executive power. However, we are opposed to spending money unless it addresses a clearly identified problem, backed up by hard evidence, when in other areas difficult choices are having to be made about cuts to vital services.

Against that background, Amendment 114 places a duty on the Secretary of State to commission an independent inquiry into the use of investigatory powers under RIPA. Amendment 114 does not require an inquiry before the commencement of Clauses 37 and 38. It would not delay implementing this part of the Bill, if the Government are determined to introduce it as soon as possible. It would, though, provide proper hard evidence of the areas, if any, that are in need of regulation—hard evidence which, at the moment, appears to be somewhat lacking. I beg to move.

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[Lord Henley]

My Lords, I am grateful for that intervention from my noble friend Lady Miller.

The measures in Clauses 37 and 38, together with the changes that we propose to make through secondary legislation, will deliver the coalition commitment to limit local authority use of RIPA—a commitment we made when the coalition came into being following the last election. The Bill also gives effect to the conclusions of the counter-terrorism review which was published in January. That review recommended two changes to the use of RIPA powers by local authorities.

First, these clauses will require that the exercise of RIPA powers by local authorities be subject to prior judicial approval. The second change, which will limit local authority use of directed surveillance to the investigation of offences which carry a maximum six-month sentence, will be implemented through secondary legislation made under RIPA. That will ensure that direct surveillance cannot be used to investigate relatively low-level matters, such as littering, dog fouling and schools enrolment, while still allowing it to be used against large-scale matters such as fly-tipping or waste-tipping, extensive criminal damage and serious or serial benefit fraud cases.

In response to representations received during the review, we have decided to make an exception to the seriousness threshold for offences relating to the underage sales of tobacco and alcohol. The investigation of those offences relies heavily on the use of directed surveillance and so in these circumstances the review concluded that it was appropriate to have a limited carve-out so that trading standards officers could continue to take effective action against businesses which seek to flout the law on age-related sales.

The conclusions of the counter-terrorism review were endorsed by my noble friend Lord Macdonald, who provided independent oversight of the conduct of the review. However, the amendment seeks a rather wider review of RIPA. I will say straightaway that, although the Government agree that it is essential that people’s privacy is protected from any unnecessary or disproportionate access by public bodies discharging their duties, this is precisely why RIPA was introduced, debated and passed by Parliament. And it is precisely why the way it is working is kept under constant review—not just by the Home Office but by the independent commissioners who report to the Prime Minister and publish annual reports which are laid before Parliament.

In bringing forward the current proposals to limit local authority use of RIPA, we are responding to public concern about a specific area in which the law operates. The measures are intended to restore confidence and ensure that any fears of future misuse are unfounded. But there is no well-founded indication that there is a need for much more fundamental reform of RIPA. Indeed, any regulatory regime would need to be built on precisely the same principles and contain the same human rights safeguards as RIPA is built on.

No one should be complacent about how our right to privacy is safeguarded. The measures before us come from one review and were endorsed by a public consultation. We need to get on and deliver them, but I put it to the noble Lord that another review before we have delivered the recommendations of the first would be premature and no doubt expensive—I do not know how many other reviews he will propose during the passage of the Bill. We will continue to monitor how the new arrangements are working in practice and adjust our approach if necessary. The developments will be reported on also by the independent RIPA commissioner, whose published reports, as the noble Lord will be aware, are laid before Parliament each year. We are confident that the measures in the Bill, together with the associated secondary legislation introducing the seriousness threshold, will prevent local authorities using RIPA in a way that undermines public confidence. Therefore, I hope that the noble Lord will feel able withdraw his amendment.

[Lord Rosser]

My Lords, in drawing up the amendment, which the Minister said was quite wide-ranging in relation to RIPA, we were seeking to address in particular that part of the Act relating to local authorities, since the coalition has made it—and the Minister has reaffirmed it—one of its objectives. It is stated in the impact assessment that the provision stems from perceptions that local authorities have misused powers rather than, apparently, hard evidence. Bearing in mind the Interception of Communications Commissioner’s view that expenditure of £250,000 will be incurred on something that is apparently regarded, certainly as far as local authorities’ use of the powers is concerned, as a perception, it did not seem unreasonable to suggest that there should be an investigation to get some hard evidence so that we might all be clear on precisely what problem we were seeking to address.

However, I have taken note of what the Minister has said. We will reflect further on the matter. In the mean time, I beg leave to withdraw the amendment.

Amendment 114 withdrawn.