Voyeurism (Offences) (No. 2) Bill (Second sitting)
Tuesday 10th July 2018
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Voyeurism (Offences) Act 2019 View all Voyeurism (Offences) Act 2019 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 10 July 2018 - (10 Jul 2018)
The Chair
Good afternoon, ladies and gentlemen. We will follow the usual house-keeping arrangements. The shirt-sleeve order is in order. Will Members and anybody in the Public Gallery—who I cannot see because I am not allowed to—please make sure to switch their mobile phones off? We will now hear oral evidence from the Chair of the Women and Equalities Committee, the right hon. Member for Basingstoke (Mrs Miller). We have until 2.30 pm to ask questions. I thank you for joining us, Mrs Miller.
Jessica Morden (Newport East) (Lab)
Q
Mrs Miller: Thank you very much for allowing me to give evidence as we consider the Bill, Sir Roger. The amendments I propose, which have support from Members of every single political party, including some Members here, seek to do two things: first, to change the purposes mentioned in the Bill, and secondly, to introduce a new item to the Bill covering distribution.
Several people feel that the listed purposes are too tightly drawn. I have worked on the amendment with Professor Clare McGlynn, who is a professor of law at Durham University. It is her clear concern that recognising offences only if they are for the purposes of either sexual gratification or the humiliation of the victim would mean that a number of cases could never be tried. That is important, because the Government have made it clear from the start that the Bill is intended to close a loophole in the law. It does not do that as presently drafted. It will need to be more broadly drafted and not simply focus on those two different purposes.
The amendments have been drafted after my having looked at comments from people such as David Ormerod, a law commissioner who has clearly set out that “motive is irrelevant to liability” in criminal law. “Smith and Hogan’s Criminal Law”, which I understand is the bible on criminal law issues, sets out that motives form an element of an offence only in exceptional circumstances when it comes to criminal law. The example given in that book is of racially aggravated offences in which racism is an element.
In many ways the Bill is anomalous, inasmuch as it sets out purposes, whereas three quarters of offences in the Sexual Offences Act 2003, which, after all, the Bill amends, do not require one. The Minister asserted during the Second Reading Committee that the amendments would
“reverse the burden of proof”.—[Official Report, Second Reading Committee, 2 July 2018; c. 18.]
David Ormerod, a law commissioner, does not agree, hence my belief that the amendment should stand.
The second amendment relates to the distribution of material. Shortly after Scotland passed a similar law to outlaw upskirting, they realised that they had no way of stopping the distribution of those images. They had to pass a subsequent piece of legislation—the Abusive Behaviour and Sexual Harm (Scotland) Act 2016—so I found it quite surprising that the Government would bring forward the Bill based on the Scottish Act but not include the subsequent legislation on distribution.
To finish this final point—sorry my answer has been so long—at the moment the revenge pornography law, section 33 of the Criminal Justice and Courts Act 2015, would apply to stop the distribution of upskirting images only in cases where they would cause distress. It would not stop the distribution of those images in any other circumstances. There is clearly a loophole in the law around distribution. I believe that this amendment would close that loophole.
Alex Chalk (Cheltenham) (Con)
Q
“obtaining sexual gratification (whether for A or C)”—
in other words, for the taker or for a third party—or
“humiliating, alarming or distressing B.”
What are credible additional or alternative motives for someone taking a photograph up someone’s skirt?
Mrs Miller: Professor Clare McGlynn has set this out in evidence to the Committee, having looked at this issue since 2015 when she first thought there was an upskirting loophole that needed to be filled. I commend that evidence to the Committee as giving a full answer. She feels strongly that there are clear cases where it would not be easy to prove sexual gratification or humiliation as a motivation of the perpetrator. She gave two particular examples for posting images: for financial gain or simply having a bit of fun. The individual may not be recognisable, so humiliation would not be caused. If those images were then posted to a WhatsApp group, that would not be caught by this law.
Alex Chalk
Q
Mrs Miller: I think, Mr Chalk, there is a fundamental misunderstanding of the driver for these types of sexual harassment. Indeed, if I may refer to evidence given to my Select Committee by another Government Minister only last week, the Minister for Women said that the driver of sexual harassment is power, not sexual gratification. The overwhelming likelihood is that these pictures will not be taken for sexual gratification.
I am advised—unlike you, Mr Chalk, I am not a qualified lawyer—that proving sexual gratification is extremely difficult, and indeed the Government do not believe that sexual gratification is the main driver of the taking of these sorts of photographs. In answer to your second question on evidence, unfortunately I do not have the resources to look through Scottish law—
Alex Chalk
Q
Mrs Miller: What I would point to is the evidence I have just given around the law commissioner, David Ormerod, who has said that “motive is irrelevant to liability” in the criminal law, and the fact that three quarters of the laws in the Sexual Offences Act that we are amending have no such provision.
Alex Chalk
That is a separate issue.
Mrs Miller: What the Government have not done—if I may be so bold—is to say why this is a very different case. They do not seem to have any evidence to back that up.
Alex Chalk
Q
Mrs Miller: I cannot provide that example. What I can do is give you professional, expert opinion, including most recently that of Lord Pannick in the House of Lords, which says quite clearly that setting out the provisions, as currently drafted in the Bill, only to cover situations that are to do with sexual gratification and alarming and distressing victims, draws the piece of legislation too tightly. I have to say that I do not want to question the opinion of Lord Pannick.
Wera Hobhouse (Bath) (LD)
Q
Mrs Miller: I think that is, if I might say, Sir Roger, something that seems to be a point of disagreement with the Government and a number of people who have provided evidence to me—not only Professor Clare McGlynn, but Lord Pannick and the words of David Ormerod. They all suggest that removing the two provisions that narrow the purposes of the Bill would not at all reverse the burden of proof. In fact, in doing so, it would be brought more in line with three quarters of the sexual offences in the 2003 Act.
Rather than in some way perverting the law, which was my layman’s take on what the Minister said in the Second Reading Committee, the amendment would more likely bring this piece of law into line with other offences under the Sexual Offences Act. There is no requirement in criminal law to specify particular motives for criminal offences—only in exceptional circumstances. The Government have not said why this would be an exceptional circumstance.
Ross Thomson (Aberdeen South) (Con)
Q
In relation to the amendments and broadening the scope of the Bill, such as to look at distribution, as you said earlier, would it not be better for the Government to engage maybe with the Law Commission to produce a report and to make considered recommendations on the existing law and the need for reform in those areas, so that they can take proper time to consider how we tackle those issues? In the meantime, we can plug that gap that we know exists.
Mrs Miller: Thank you for your questions. I will pick up your words to take “proper time” over this. I think the Government should take proper time over the whole of the Bill. In potentially rushing it through, we could end up with a piece of legislation that is not doing what the Government set out for it to do, which is to close a loophole in the law.
Far from it, it could be putting in place a piece of legislation that exacerbates loopholes and gives perpetrators the opportunity to say, “Well, do you know what? I was only doing it for financial gain. I wasn’t doing it to harass the victim or for sexual gratification. I was simply doing it so that I could get 100 quid from an online site. I didn’t even know the name of the victim, so I couldn’t have been harassing them or humiliating them, and I certainly wasn’t getting sexual gratification from the images.” In rushing this through, for the best possible motives, we may end up with a piece of legislation that does not close that gap.
On amending the Bill to cover distribution, I say to Mr Thomson that following the introduction of the Scottish Act, a piece of catch-up work had to be done. As I mentioned, a piece of legislation had to be passed in 2016 to close the gap created by the fact that the original Act did not cover distribution. Perhaps I will point the Committee towards some further evidence here. The Bill is very much founded on what was put in place in Scotland in 2012. A lot has happened since then to the way the online world works and the way other countries deal with exactly the same problems with regard to images.
I am somewhat surprised that the Government do not want to look at precedents other than Scotland to get a better solution. For instance, why would the Government not want to look at what is happening in New South Wales, where a law was introduced that covers all intimate images that are taken and potentially distributed? Why would they not look at the Irish commission’s proposal, which again establishes a core offence and, rather than focusing only on upskirting, includes all intimate images that are distributed non-consensually? My question is: why Scotland? Why not try to do a proper job and look at what other countries have done far more recently?
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Mrs Miller: I would say that one very good aspect of the Bill is that it will make upskirting a sex offence, so, as the Minister set out clearly in the Second Reading Committee, there will be anonymity for victims. I am very clear that that—acknowledging that many image-based offences should be categorised as sex offences and therefore that victims should be afforded anonymity—is a move in the right direction.
At the risk of going into other areas—I know you would not want me to, Sir Roger—there are parallels to be drawn with revenge pornography, which was not deemed a sex offence despite the fact that it has a similar impact on victims, and for which there is no anonymity as a result. We know from work by organisations such as the BBC that one in three victims in cases where police want to press charges backs out. Many perhaps do so because of the lack of anonymity if cases are taken to court.
The Bill is a is a positive step, but Ms Saville Roberts alludes to the concern that, by rushing it through, we may reinforce the fact that not all intimate images are illegal and reinforce bad behaviour. She is absolutely right. What really concerns me is that perpetrators could easily plead that they were taking images not for sexual gratification, but anonymously for sale to a third party. That could actually give perpetrators a very big loophole to climb through. At the moment it is not so clear but, if the loophole is set out in law, some very clever barristers could make extremely good use of it.
Mary Robinson (Cheadle) (Con)
Q
Mrs Miller: This morning, listening to Assistant Commissioner Martin Hewitt, he was really saying, “If this is expanded any more, it leads to more to deal with in the legislation.” If anything, however, the amendments would make the life of the police a lot easier, because they would not have to prove sexual gratification, which I am told is extremely difficult to prove, nor would they have to prove that a victim was subject to humiliation or alarm and distress, which again are not always the easiest things to prove. What they have to prove is that a photograph was taken. I would have thought that that was much more straightforward in scope.
One issue that Members raised in the Second Reading Committee, and that the Minister has raised, is that the legislation might lead to more offences being caught because, potentially, it would capture more young people who are simply taking photographs in a way that might be seen more as jovial or as a bit of a laugh. I have to say that I have yet to meet any victim of this crime, of whatever age, who thinks it is a bit of a laugh. The impact on the victim is as great if it is done for that reason as if it is done for sexual gratification.
I also point out to the Committee that the Government already have dealing with young offenders well under control: Crown Prosecution Service guidance on the charging of young people with any offence is already in place. In particular, that was gone into in great detail when the Sexual Offences Act 2003 was discussed. The noble Lord Falconer discussed it then and it was clearly set out in CPS guidance that it was not Parliament’s intent to punish children unnecessarily or inappropriately. I therefore do not think that that will be quite the issue that has been drawn out in conversations about the Bill.
Yasmin Qureshi (Bolton South East) (Lab)
Q
Mrs Miller: First, I am very grateful for your comments about our Committee’s work. The Women and Equalities Committee is actively looking at this issue in our current inquiry into sexual harassment in the public realm. If Members are looking for evidence of the need for a law, please look at the evidence we had from the British Transport police, who told us very clearly that the lack of a specific sexual offence for upskirting causes them real issues. As I have said before, we have had evidence from Professor Clare McGlynn, who has been calling for a new law of this sort since 2015. Dr Matthew Hall and Professor Jeff Hearn have given us evidence about how technology has facilitated an explosion in crimes in public places and have gone into quite a lot of detail about the earnings that people have made from upskirting websites. Rape Crisis has commented on the lack of mention of sexual harassment in the Government strategy. So we have had quite a lot of evidence to suggest that this is important to do.
I have not looked in detail at Stella Creasy’s amendment, but I know that some concerns have been expressed about introducing a hierarchy within the Bill. I would just refer you again to Professor Clare McGlynn’s evidence on that. I would not really want to comment any further on it at this stage, if you will forgive me.
Yasmin Qureshi
Q
Mrs Miller: I think an inconsistency in the law is emerging here that the Government need to look at much more closely. Mention has rightly been made of revenge pornography. When that offence was introduced back in 2014, the need for it was questioned somewhat by the CPS. We now have 500 cases a year successfully prosecuted and hundreds more that are not successfully prosecuted, for the very reason that has just been set out—it is probably mostly because anonymity is not afforded there. But I think some broader inconsistencies are coming out as a result of this Bill. We have said we are delighted that the Government have seen this as a sex offence and so there will be, in the case of upskirting offences, anonymity, but as has been pointed out, why is there not anonymity for people who are victims of revenge pornography? It is not entirely clear on what basis that has been decided, other than the fact that revenge pornography was not made a sex offence—again, for reasons that are entirely unclear. I am sure the Committee is very aware that flashing in a mac is not only a sex offence but, if it was causing harm or distress—not sexual gratification—a notifiable offence, yet deep fake porn, where your head can be very easily put on to a pornographic image, moving or otherwise, is not a sex offence at all; it is simply harassment.
I think this is at best complex and at worst confusing, and the Government need to take a very long, hard look at it, because online offences and image abuses are as real and as dreadful for the victims as some of those abuses that are perpetrated in person.
The Chair
We are running out of time. We will take one very quick question from Helen Whately and then we have to draw this session to a close.
Helen Whately (Faversham and Mid Kent) (Con)
Q
Mrs Miller: You are asking me to speculate, Ms Whately. There is anecdotal evidence that the sharing of these images in WhatsApp groups can very readily be for “mate” reasons—group interest, perhaps a little bit of prowess.
Helen Whately
Q
Mrs Miller: In that case, it could well be sexual gratification, but why are we making the police’s life so hard because we want to capture only those people where we can prove beyond reasonable doubt—because it is a criminal charge—that this is for sexual gratification, when, frankly, taking a picture up your skirt, Ms Whately, would be as offensive to you, whether that person was seeking sexual gratification or whether they were simply doing it as a lark, so that they could put it on their WhatsApp group and share it with their mates. It is the same impact on you as a victim as it would be if they were getting sexual gratification or seeking to humiliate you.
We know from the police that, with many of these images, people do not know the victims and it would be impossible to prove humiliation. We know, again from the police, that trying to prove sexual gratification is far more difficult. Should we not try to look at this from the victim’s point of view, as three quarters of sexual offences already are, and simply set it out as a crime in its own right and stop being obsessed about why people do it?
The Chair
That, Mrs Miller, is a question we are going to have to leave in the air, because we have run out of time. Thank you for coming. We appreciate that you are an extremely busy lady. The Committee is indebted to you.
Mrs Miller: May I thank the Committee for allowing me to speak today?
Examination of Witness
Lisa Hallgarten gave evidence.
The Chair
We will now take oral evidence from Brook, which used to be known as the Brook Advisory Service. We have until 3 o’clock for this session. Please identify yourself for the record.
Lisa Hallgarten: I am Lisa Hallgarten, head of policy and public affairs at Brook.
The Chair
Thank you very much for coming, Ms Hallgarten. Who would like to open the batting? Or we could sit in stony silence for half an hour.
Ross Thomson
Q
Lisa Hallgarten: I am glad you asked that question. Our position is that we are very glad that upskirting is being taken seriously. I said in advance that I could not comment on the criminal justice aspects—I do not have a legal background. I can talk from the position of the young people we work with and the impact that this law might or might not have on them.
Much as we are delighted that upskirting is being taken very seriously, we do not necessarily believe that for young people a criminal justice approach is the best or the only way to tackle it. We recognise that the patterns for some of this behaviour are set as early as the early years of primary school. We think that educational approaches and whole-school approaches are needed to tackle the kind of gender stereotyping that underpins this, the lack of understanding of personal boundaries, issues around consent, issues around bodies, and how you talk to and report bullying and abuse. All those things are the beginning of this behaviour, and we need to tackle them through educational approaches.
We have some recommendations about how to do that, but we think it should begin in early years, right from the beginning of school, with teaching children about consent and how to understand the limits of other people’s ability to touch you, how to recognise when someone is bullying you and how to understand your right to say no to things. That is a very simple start and it needs to go from early years right through to the end of secondary school.
Some of this behaviour is seen to be “normal”. I spoke to our team of educators to find out what their take was on this, and they said that sometimes when they go to secondary schools and talk about some forms of sexual harassment, which might include upskirting, some of the girls say, “It’s just normal, isn’t it?” We need to nip that in the bud much earlier on and say that this cannot become normal, because if it does, there is no sense in which people can protect themselves against it. It is very important to us that this is not just about punishing the perpetrators, but about prevention.
Ross Thomson
Q
Lisa Hallgarten: I must admit, I cannot answer the second point because I do not have any direct evidence of the impact on individuals. On your first point, around consent, it is extremely worrying that people could get to the end of their school life without having fully understood sexual consent and what their rights to bodily autonomy are. However, it is not surprising when so many young people do not get an opportunity to learn about those things in school.
One of the things I would say is that we are very disappointed that the Government are taking so long to make a decision about whether personal, social and health education will be made statutory in school, and we are very disappointed at the one-year delay in mandatory relationships and sex education. These are the subject frameworks within which consent can be fully explored from the earliest years of school right up until the end of school. We feel like these subjects have always been marginalised. RSE and PSHE have always been the Cinderella subjects in school, and we feel they should be front and centre in terms of people’s personal development and prevention of crime.
Wera Hobhouse
Q
Lisa Hallgarten: In terms of having conversations with young people, the kind of nuance you are talking about is probably not going to have any traction either way. Knowing that something is illegal gives a strong message that it is wrong, but much more important than understanding that it is considered to be wrong is understanding why it is considered to be wrong. Talking about the distress it causes and the impact it has on its victims is probably as important as just saying something is wrong. We know that when you tell young people something is wrong, that does not necessarily seep through, as opposed to exploring with them what somebody might feel to be a victim of this. As for whether the law will be more or less effective depending on the wording of the clauses, I would think that that is probably not that relevant for young people.
My concern with the law would be whether it is clear that it can be implemented in a way that has some form of nuance. Some very good work was done by the UK Council for Child Internet Safety around sharing sexual images and an understanding that when young people share sexual images they have made, it has to be in the public interest for a prosecution to go ahead. My concern would be to have any Bill on this that unnecessarily criminalises a young person who does not fully understand why what they have done is wrong.
Mary Robinson
Q
Lisa Hallgarten: Brook is a young people’s sexual health charity. We currently have clinical services in 10 areas of England, and we deliver sex and relationships education in about 10% of schools in England. We also develop resources for teachers, so we cover areas all around young people’s sexual health and relationships. In terms of the increase in offences, we know from the Women and Equalities Committee report, “Sexual harassment and sexual violence in schools”, that there are incidents in schools at a very early age. Quite often they are not dealt with seriously, and schools feel slightly at a loss as to how to respond to incidents.
We would like to see clear guidance for schools on how to deal with what they may see as insignificant incidents at primary school and upwards. They may see these incidents as innocent, not necessarily because the incident is more serious than that, but because dealing with it in a serious structured way starts to give a message to children that it is not acceptable. There is a sense that if you do not deal with it early and do not give those messages strongly early, then those incidents are likely to become more serious.
Mary Robinson
Q
Lisa Hallgarten: Absolutely, and I should clarify that when I say that schools should be given clear guidance on how to deal with the issue, there are many ways of dealing with it that fall short of criminalisation. That is why I referred to the work done on sending and sharing sexual images: some good work was done on how to support schools in managing those incidents and treating them with the seriousness with which they deserve to be treated. We also need clarity about when it is and is not appropriate to report incidents to the police and, when they are reported, guidance that allows the police to use their discretion as to whether to bring a prosecution—it has to be in the public interest for them to do so.
I worry that if young people know that something is illegal, they are less likely to report it. If they think that a schoolmate will be criminalised, they will be less likely to report it. The research on sending sexual images showed that young people were scared if they appeared in the image—they were distressed about an image of themselves being shared—and they were distressed about reporting it, in case they would be criminalised. One of our messages would be that young people do not necessarily hear the nuance of messages, and we have to be careful about the message we give them, so that we do not deter them from seeking help around these issues.
Liz Saville Roberts
Q
Lisa Hallgarten: I wanted to avoid saying too much on what the Bill should look like as that is not my area of expertise. The aspect of upskirting that young people especially—for whom sharing images is normal and scary—would find most distressing is the fear that it would be shared. I do not know if that should be addressed through the law or through the guidance and work we do around it with young people, but that, more than anything else, would be their fear.
Liz Saville Roberts
Q
Lisa Hallgarten: That may well be true. With any law, you want to ensure that it is not counterproductive. If people are less likely to point their finger at a perpetrator or to report an incident because they think it is inappropriate for the person who did it to be potentially imprisoned, that is something I suppose you would want to take into account in creating law. Young people especially do not want to criminalise their peers. They do want this to be taken seriously, but that is not necessarily the same thing.
Gillian Keegan (Chichester) (Con)
Q
Lisa Hallgarten: I wonder whether it is the same to a victim, actually. Every incident is very particular. Some women would think, “That person is pathetic and sad,” and other people would feel really invaded and offended and harassed by the experience. For each woman it will be different. There is no perfect law that will address every victim’s experience of this.
I do not have the Bill in front of me, I am sorry to say, but I did not see anything about a prosecution being in the public interest. I know that in terms of sharing sexual images and the guidance to police on whether to prosecute, there is something about whether prosecution is in the public interest. For a lot of young people, it would not be in the public interest. It would be in the public interest to teach children not to behave that way in the first place. I am not sure whether the Bill is the place to address that, but certainly it needs to be addressed. Prosecution should not be automatic and it should be taken into account that a young person’s life could be ruined for something that was genuinely a spontaneous moment of stupidity. We would not want that to happen.
Andrew Jones (Harrogate and Knaresborough) (Con)
Q
Lisa Hallgarten: It is an interesting question whether law in itself is about education. I think people are glad that people are discussing this and taking it seriously, but I personally do not think having the law in and of itself is educational.
Andrew Jones
I wish it was as simple as, “We could pass a law and everything would change.” That would be marvellous. I think everybody who is involved in passing laws knows that that does not happen.
Lisa Hallgarten: I am not sure whether it needs to be broadened, although I am not an expert in what sexual offences already exist and what is not already covered by legislation. I am sorry I cannot be very helpful on that point.
Alex Chalk
Q
From your vantage point, what experience have you had in similar cases, such as revenge porn, of that discretion of individual police officers being exercised credibly and consistently around the country?
One of my concerns is that a police officer might go to a festival in Reading and decide that that 15-year-old is an idiot and deal with them by way of a caution, but a police officer in a different part of the country could say, “Absolutely not. You are going to be charged and potentially go inside.” Do you have any experience of whether discretion is operated properly and consistently in relation to young people?
Lisa Hallgarten: I do not have evidence of whether it is operated correctly and consistently. I do know that there is guidance on sending sexual images, which I keep referring back to because it is extremely helpful. There is something called Outcome 21 in the guidance:
“This means that even though a young person has broken the law and the police could provide evidence that they have done so, the police can record that they chose not to take further action as it was not in the public interest.”
Another part of that guidance says that
“schools and colleges can be confident that the police have discretion to respond appropriately in cases of youth produced sexual imagery”.
I do not know how well or how consistently the guidance is implemented and I cannot answer that.
Alex Chalk
Q
Lisa Hallgarten: I would agree and I would say that it is really important that people understand the point of the legislation. Whether that can be described through the wording of the legislation, I do not know.
Helen Whately
Q
Lisa Hallgarten: It is interesting that we are going from lots of schools not even excluding a child who has been proven to be involved in sexual bullying or harassment to moving to prosecution. It would be good to think about the different steps that are appropriate at different ages for a child and different kinds of offence.
There have been situations where young women who have been raped in school—a very serious sexual assault—have had to go to school when the same children are still in the school—the people who were guilty of the offences. It feels to me that there is a big gap between ignoring the offence and prosecuting the child. There must be some sensible steps that we could take.
None of this is to say that this law should or should not happen. I am not really commenting on whether the law should exist, but I think, long before a child is prosecuted, far more steps should be taken, and much earlier. It is very unlikely that somebody would go to a serious offence from nothing. It is very likely that a child who ends up taking photos, sharing sexual images or physically assaulting somebody will have done what we would consider to be more mild offences, which will not have been picked up or taken seriously.
I know that the Women and Equalities Committee report found that lots of cases were dismissed. Lots of complaints, mainly from girls, were very easily dismissed in their school and not taken seriously. You wonder whether those boys just did not get the message that it is completely unacceptable to behave like that.
The Chair
Are there any further questions? No. In that case, Ms Hallgarten, thank you very much indeed for affording the Committee the benefit of your experience and knowledge. We are grateful to you.
Ordered, That further consideration be now adjourned. —(Amanda Milling.)
Voyeurism (Offences) (No. 2) Bill (First sitting)
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
Good morning, ladies and gentlemen. I have a few housekeeping announcements before we begin. The first and most important of all—although not quite as important as it might have been yesterday—is that Members may take off their jackets if they wish to do so. Will Members please make sure that all their electronic devices are on silent or airplane mode or something? We do not want things ringing in the middle of the sitting. Water is available. Teas and coffees are not permitted during the sitting. Date Time Witness Tuesday 10 July Until no later than 10.00 am Gina Martin Tuesday 10 July Until no later than 10.30 am The National Police Chiefs’ Council Tuesday 10 July Until no later than 2.30 pm Rt Hon Maria Miller MP Tuesday 10 July Until no later than 3.00 pm Brook
I have taken the liberty of asking the staff to exclude the public, rather than to let them in and then have to throw them out again so that we can sit in private for any private discussions that we may need to undertake. We will sit in public once we get going properly. We will consider the sittings motion on the amendment paper, then a motion to enable the reporting of written evidence for publication, and then a motion to allow us to deliberate in private, which is a formality, about questions before the oral evidence session. In view of the time available, I hope we can take these matters formally and without debate. However, if anybody wishes to intervene, they are absolutely at liberty to do so.
Resolved,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 10 July) meet—
(a) at 2.00 pm on Tuesday 10 July;
(b) at 11.30 am and 2.00 pm on Thursday 12 July;
(2) the Committee shall hear oral evidence in accordance with the following Table:
—(Lucy Frazer.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Lucy Frazer.)
The Chair
Copies of the written evidence that the Committee receives will be available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Lucy Frazer.)
The Chair
We now resume our public sitting and hear evidence from Gina Martin. Before calling the first Member to ask a question, it says here, rather pompously, that I have to remind all Members that questions should be limited to matters within the scope of the Bill and that we must—this is important—stick to the timings in the sittings motion that the Committee has agreed, otherwise we shall overrun and not have the time to afford our guests the courtesy of the proper opportunity to answer questions. Ms Martin, thank you very much for joining us.
Gina Martin: Thank you for having me.
Wera Hobhouse (Bath) (LD)
Q
Gina Martin: When I was upskirted—when it happened to me—it was obvious that it was to humiliate me. The pictures were taken up my skirt and passed to people around me, and it was done in response to my rebuffing their sexual advances. My aim, from the beginning, was to work on a Bill with everyone here to cover different situations. I believe the Bill does that because it covers humiliation, distress or alarm.
Wera Hobhouse
Q
Gina Martin: I do, yes.
Ross Thomson (Aberdeen South) (Con)
Q
Do you think the impact of the Government seeking to bring in this new legislation as soon as possible will be on the side of victims? Do you think this is the right direction to go? I would like to hear your views on whether you think we are doing the right thing, essentially.
Gina Martin: I do, yes, and I think the point you made that the speed at which we do this should be as quick as possible is really important. Upskirting happened to me at a festival a year ago yesterday, and yesterday, Sunday, I received a message from a 16-year-old girl who went to the very same festival, where it happened to her twice by the same person. That shows that this is happening as we sit here and are dealing with it. What we are doing now is absolutely imperative.
Ross Thomson
Q
Gina Martin: That is incredibly important to me. I think it has to be focused, it has to be simple and it has to focus on this one issue. We all know there are other broader issues that we want to focus on, but this is an upskirting Bill and it has to focus on just that.
Laura Smith (Crewe and Nantwich) (Lab)
Q
Gina Martin: Again, we need to deal with a lot of valuable issues. Do I think this Bill needs to cover all of them now? No, I think this is an upskirting Bill and the most important thing is that we cover this problem quickly and simply, and afford women the protection they deserve as soon as possible. I would argue that this is a Bill about upskirting and that those issues that Clare has brought forward should be dealt with properly and with scrutiny at a later date.
Mary Robinson (Cheadle) (Con)
Q
Gina Martin: It is very difficult. I think the feeling of harassment was compounded. I have not separated out in my mind which I think was worse, because it was just a very horrible blurry event. I just hated all of it, if I am being totally honest. That is my very human response to it.
Stella Creasy (Walthamstow) (Lab/Co-op)
Q
Gina Martin: That is a question that is more for a lawyer. I am not a lawyer, and I am not going to sit here and talk about the legislation in detail. One thing you touched on there was monetary gain. I would like to say categorically that of course I would like to see that we could prosecute at some point the paparazzi and photographers who do this. I am of the understanding that that needs to be done very, very carefully, with a lot of detail, to ensure that there are no unexpected consequences. I do not necessarily think that we should delay this process to look at that specifically—that is for another time.
Also, having worked specifically in the media for a very long time, I am very aware that if one celebrity decided to prosecute and raised charges using outraging public decency against paparazzi that would change very quickly. There is a big amount of education that needs to go on in that area. That is my feeling on that.
Alex Chalk (Cheltenham) (Con)
Q
Gina Martin: I am pretty comfortable with that, but again, it is something we need to look at more specifically. I am here to give my evidence as a human, not to give strong evidence specifically on the Bill.
Alex Chalk
Q
Gina Martin: Yes, because I think that if it is for sexual gratification it is a more serious offence, because it is often done multiple times and is a pattern of behaviour. That is where we go to more robust punishments. For me, personally, the Bill does strike the right balance.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q
Gina Martin: I have spent enough hours sitting in enough meetings with my lawyer, Ryan, to understand that that is not something that needs to be worried about massively. Again, I am not a lawyer. There are ways of dealing with it and understanding case by case what happened. It is not the top concern that that would be an issue. That is my understanding.
Liz Saville Roberts
Q
Gina Martin: For me, it is really important that the Bill sets out the intent and the action. Distribution is obviously distressing. I work specifically in digital and social media—that is my job—and a lot of work and education need to be done there to address this. It is really important to me that the Bill looks carefully at stopping and deterring people from committing the act in the first place.
Maria Caulfield (Lewes) (Con)
Q
Gina Martin: I think the Bill sets out to protect everyone across England and Wales, regardless of their age. It is very broad and it protects everyone. I am sure that the right steps will be taken depending on age, the offence and the way in which people take the photos.
Maria Caulfield
Q
Gina Martin: I feel it does that well. Again, my understanding—having worked on this for a year with great lawyers who know the details of the Bill, the situation and the offence very well—is that each prosecution is dealt with objectively by looking at the situation. As with any law, we would not prosecute kids how we prosecute adults. The Bill does that really well.
Wera Hobhouse
Q
Gina Martin: Can you repeat the question?
Wera Hobhouse
We were talking about motivation. The Bill covers two different motivations: to humiliate and cause distress and for sexual gratification. We are also looking at the possibility of other motivations, for example if somebody says, “I didn’t even know that person. I didn’t want to humiliate her and I don’t get very excited about the image, but somebody offered me money.” Would it not have distressed you in the same way if it had been done with another motivation?
Gina Martin: I do not want to sit here and imagine how I would feel if I were the victim of that exact scenario. That has been a big problem that I have dealt with—people trying to guess exactly how I felt during the situation—but it is important to remember that there could be a lot of unintended consequences from looking for solutions to the monetary gain situation.
We do not want the paparazzi to be charged as sex offenders for doing their job. We can all agree that that is not a great job to do—I do not agree with it—but they could be charged as sex offenders. They should be able to be prosecuted for outraging public decency, which they can be, and I have worked closely with celebrities who have been through that. They have talked to me in confidence about it, and they have said that because of this campaign, they have considered prosecuting for outraging public decency, which is great.
Wera Hobhouse
Q
Gina Martin: No, not necessarily. I could have prosecuted under outraging public decency, because there were two or more people there to witness what happened to me, but I did not because the police were confused about the grey area of the law. I never did this to cover my own situation; I did it to cover every instance and help other women as well. I could have prosecuted under outraging public decency, if I had chosen to.
Wera Hobhouse
Q
Gina Martin: Yes, absolutely, but having worked with women who it has happened to for monetary gain, I believe that there is a way of doing it that is just as valuable but that does not delay this Bill or mean looking into it in this Bill. That is the truth.
Wera Hobhouse
Q
Gina Martin: I am absolutely worried about the delay of the Bill. I do not think we should delay this protection being afforded to women in order to look at that, because it needs to be looked at in detail. Also, it would take one celebrity to table a report of outraging public decency to stop this happening. I have discussed that at length with the media and people this has been done to by the paparazzi.
Alex Chalk
Q
“does so with the intention”
that he, or another person he has passed it on to, will look at the image
“for a purpose mentioned in subsection (3)”—
that is, for sexual gratification or “humiliating, alarming or distressing” the person. In other words, if a pap takes the image and sends it on to somebody who thinks, “Hey, look at her! Look at what underwear she is wearing,” or, indeed, uses it for some perverted reason, do you think that that meets the concern that is being raised from your point of view?
Gina Martin: Again, I do not want to sit here and give legal advice, because I am not a lawyer, but there is an argument that although it does not say, “personal gain from publishing those images and other people gaining sexual gratification from them,” there is a way that the Bill covers that situation, because it covers all people in England and Wales. There is an argument that that could be covered as well in this Bill.
Gillian Keegan (Chichester) (Con)
Q
Gina Martin: I have heard about it. My personal experience is that all of the hundreds and hundreds of stories that have come to me over the past year have been about upskirting. I have not received that many stories about down-blousing. I do not know why that is. Of course, I think it is horrible. I would like to see a million things sorted out and prosecuted against. This being an upskirting Bill, I have to focus on that issue, but thank you for raising it.
Liz Saville Roberts
Q
I understand that you want to see something move as quickly as possible. There are concerns that legislation that is made in haste is not necessarily always effective. We have had examples of that in the past. Would you consider that it is important that we are as thorough as possible in taking evidence and in looking at ways of making this piece of legislation as robust as possible, with as few loopholes as possible?
Gina Martin: Yes, of course I would.
Liz Saville Roberts
Q
Gina Martin: No, of course not.
Helen Whately (Faversham and Mid Kent) (Con)
Q
Gina Martin: Yes, and a big part of that is because a lot of women do not know it has happened to them. It is incredibly secretive assault. A study done recently by a women’s magazine asked women to give their stories of it anonymously. The feedback it got was that up to 80% of women said that they felt harassed and upset, but a lot women said that people had seen it happen to them. People feel that this is something that happens to women—and men and children—extensively, but they do not know it has happened because it is very hard to see it. I was lucky that I saw the picture. That is why we have not spoken about it for so long, and it has been normalised and accepted in society for so long. This campaign has ignited a conversation, so of course people have flooded in, talking to me. I am the only one who has ever gone out and said loudly that it has happened, so I think they trust me, which is nice.
Helen Whately
Q
Gina Martin: Yes, because it has always been happening.
Helen Whately
Q
Gina Martin: Yes, 100%. If I did not think that, the amendment would not be valuable. Obviously, there is a distinction between someone who has 5,000 photos on their phone and a 13-year-old who does it once and does not fully understand the full repercussions of his actions. I feel like the Bill that we have put forward covers all those instances and can be used case by case, objectively by prosecutors.
Mary Robinson
Q
Gina Martin: In each situation that this happens in, regardless of where it is, the age of the person and so on, it is very hard for me to say specifically where it is on the spectrum of how they feel. I have friends who it has happened to. They half did not know it was happening, but it happened to them and they were embarrassed and they left. Their instance was not as violently violating as mine felt. It is difficult for me to know, but that is something where the Bill needs to look specifically at each person’s circumstance. Currently we cannot do that.
The Chair
We are doing commendably well, but we are going to run out of time, so I will call Stella Creasy and then the Minister.
Stella Creasy
Q
Gina Martin: In terms of?
Stella Creasy
If they are shown to be hostile towards women because they have gone out and done this several times. Perhaps they have made websites of all the pictures they have taken and they have shown a different approach—a sense of entitlement—to being able to take pictures of women in this way. Do you think that level of behaviour should be reflected in and have an impact on the sentence they get, if they have been found to have taken the pictures and breached the conditions?
Gina Martin: Yes, I feel like this constantly repeated behaviour, the sinister intention and the power play have to be taken into account, and their behaviour would be taken into account by prosecutors.
Stella Creasy
Q
Gina Martin: It is difficult for me to say without knowing the process. I would not want to sit here and give advice, because I do not know the process of prosecuting this. I have been leading the campaign as a victim, so it would be difficult for me to give that advice. If Ryan was here, I am sure he would be happy to talk to you about that and to give you a more comprehensive answer. It would be remiss of me to give you an answer on that.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
Q
Gina Martin: Yes, that is where I stand currently.
Yasmin Qureshi (Bolton South East) (Lab)
Q
As you know, the upskirting offence in the Bill would allow victims to be anonymous because it is categorised as a sexual offence. There has been considerable debate and a suggestion, particularly from Professor Clare McGlynn and Women’s Aid, that the Bill’s scope needs to be extended, so that victims of all image-based sexual offences have the right to anonymity in court. For example, it does not cover revenge porn. What are your views on that?
Gina Martin: My view is that it is incredibly important to bring forward this protection quickly and focus on the issue that we have here. I have been a victim of sexual assault and harassment throughout my life. I would like to see every situation covered. I would also like to see the things that you mentioned, but I do not believe that this is the place to do it.
This is a Bill about upskirting. It is unprecedented for a Bill to go through so quickly with so much support. We have an opportunity to put down one piece of the puzzle. I would like to see us do that with this specific issue. I would personally help afterwards to focus on the rest.
The Chair
Thank you. Are there any further questions? Ms Martin, thank you very much indeed both for your candour and your willingness to stick your head above the parapet. I hope that this experience, at least, has not been too bruising for you.
Gina Martin: No. It has been lovely. Thank you all.
Examination of Witness
Assistant Commissioner Martin Hewitt gave evidence.
The Chair
We will now hear oral evidence from the National Police Chiefs’ Council and we have until 10.30 am. For the benefit of the record, could you please identify yourself?
Assistant Commissioner Hewitt: My name is Assistant Commissioner Martin Hewitt. I am from the Metropolitan police.
The Chair
Mr Hewitt, thank you for taking the trouble to come and talk to us this morning. I know that there will be significant questions, which I am sure you will be able to answer with great candour, as we expect. Who would like to set the ball rolling?
Yasmin Qureshi
Q
Assistant Commissioner Hewitt: There would clearly be an impact if this legislation were enacted because it would create a new offence. It would fill a gap that exists currently in the legislation to deal with this type of offence. I do not think it would be a massively impactive issue for us and the subsequent services. You would have to think about police resourcing.
Clearly, any legislation would inevitably and quite properly lead to publicity about that legislation, which would be a positive thing. It would be an important element of any legislation to make it very clear to anybody who was thinking of perpetrating the crime that there would be a law that would deal directly with it. That would have a positive impact in terms of prevention. It would clearly lead to an increase in reporting but I do not think that level of increase would be so significant that it would outweigh the benefits of being able to deal with this crime effectively.
You would obviously have the knock-on when individuals were charged in the Crown prosecution and courts system. The other end that we would have to consider is the impact of people who would potentially be placed on the sex offenders register. That is a list that grows. To give the example from my own force in London, we have seen an increase of about 8% or 9% per annum over the past few years in London of those who are on the sex offenders register. Clearly, there is a monitoring regime around those individuals based on the risk element. There would properly and obviously be an impact on resources, but I guess that is weighed against the necessity we have to be able to deal effectively with what is a newish crime and a crime that is quite impactive.
Kate Hollern (Blackburn) (Lab)
Q
Assistant Commissioner Hewitt: Establishing motive is always a challenge in any sort of crime. You will clearly have the digital evidence—that is, whatever photograph was taken. That will take you some way towards motive. Adding the element of alarm and distress is important, because the legislation should be very victim focused. Clearly, I would suggest, any person who realised or became aware that someone had taken a photograph in those circumstances would be distressed by it, so you would be able to use that.
Equally, one of the other factors we have to consider is that, often, these photographs find their way on to websites. There are websites where people will upload these kinds of photographs. Again, there is a further trail that takes you towards motivation on behalf of the person who has committed the offence.
We will always have to prove motivation, but the alarm and distress element is very strong. I suggest that, with the right kind of questioning, the right approach to interviewing and the digital evidence you would have, you would be in a reasonable place to assert the motivation.
Mary Robinson
Q
Assistant Commissioner Hewitt: I don’t think it is about difficulty. For me, that is the gap this legislation can potentially fill. The two pieces of legislation that you would most likely try to use as it currently stands are, first, outraging public decency legislation, which—let’s be honest—even with the language used in that you realise it is not necessarily fit for the time that we are now. In the first instance, that has to happen in a public place. It also requires witnesses to have been present at the time where the offence took place. An important point coming from my sexual offences lead is that it is not, per se, a sexual offence, and I think these should be treated as a sexual offence. We also have the voyeurism legislation, which has been used, but again, that requires a private setting and seeing and filming a private act.
I do not think the legislative framework as it stands is adequate for the issue that we have. It is another example where the advances and availability of technology—let’s be clear, I would guess that everyone at secondary school probably has a smartphone with them all of the time, which means they have a camera with them all of the time. This means they have the opportunity to commit an offence, amongst others. There are a number of what I believe are sexual offences that are image-based—the so-called sexting and the revenge porn as it is popularly called—all of these offences where the ability for people, universally, to take quality images quickly and potentially share those images takes us to a place where, at the moment, the legislative framework does not give us the ability to deal with that effectively. That is the gap. You always have to prove a crime and there will be always be occasions when that can be challenging. We can deal with it much more effectively with clauses that are specifically focussed on this type of offending.
Mary Robinson
Q
Assistant Commissioner Hewitt: I just think that this is a specific issue that needs to be dealt with. I don’t know if I really want to get into that here. It is worth making the point that we collectively need to focus on a number of image-based sexual offences. People are committing offences in ways they never did before because of the universality of the technology. Legislation can never keep up with every change, but the technology that exists, and our ability to obtain digital forensic evidence and to check things in the way that we can around offending, takes us to a place where we need legislation that fits the nature of the criminality.
Liz Saville Roberts
Q
Assistant Commissioner Hewitt: There is no doubt that we have been wrestling for some time with a dilemma in exactly the way you describe. Developments in technology have enabled a whole range of offending that previously would still have taken place, but in a very restricted and challenging way.
Consider the issue of indecent images: previously it was difficult for somebody to access indecent images. They had to find their way into very specific websites and undertake a series of acts to get there and do what they did. Indecent imagery is now almost readily available in so many spaces, and this means that far more people are accessing it either deliberately or inadvertently. Equally, there is the technology we use to spot when particular computers are accessing that imagery. We are in a situation in which there is a real volume challenge for us. The legislation point needs to be clear at the outset that doing this is illegal, and in this instance we do not have clarity around the specific issue of upskirting, so we need legislation that clearly says that—in the circumstances described—“This is an illegal act”.
The question then is how we respond, and how the system deals with that illegal act. In the first instance it would require awareness, training and understanding to be shared between police forces so that all officers were aware of the new legislation—as we would do with any new piece of legislation—and so that they understand what their powers are and what needs to be done. Then you get into the use of discretion and how you apply the legislation, as you would under any circumstances. For example, where it involves a 15-year-old and a 15-year-old, we need to think and then apply the usual logical approach that would be applied to whichever outcome you were seeking. The system would need to be able to look at whether certain offences were suitable for a caution or some form of warning. We do not want to be dragging loads of young people into the criminal justice system unnecessarily. With image-based sexual offences, you always have that challenge of trying to understand the level of risk presented by the offender, whether it is the viewing of images or upskirting. Some offenders will do no more than take a photograph or view an image, but some may be contact offenders or be escalating in the nature of the offending, and our challenge is always to have systems and processes in place that allow us to try to identify what the risk level is. Even among those registered sex offenders I spoke about, there are clearly RSOs at the top end who are the highest risk RSOs for whom we have significant control mechanisms, and then others at the lower end, where there is a much lighter level of control.
What you wrap into that, as I said at the very beginning, is what we do in terms of publicity and getting the information out there, not just to the police but to the broader public, about what this legislation says, why it is being done and what it says about what we expect and do not expect. I think that will have a really positive impact. You then broaden that out to all the spaces where this offence might take place, for people to become more aware of it. Looking at the offences we have dealt with most, there are obviously quite a few on transport systems, but they are also in supermarkets, shops and places like that. There is an awareness thing that can go on, and then it really is about dealing proportionately with the offending.
All those things are challenges, but I do not think that any of them take us away from the fact that these acts are illegal—they should be very clearly and specifically illegal. Particularly in this instance, they are also incredible distressing and harmful to the victim, but we have to try to find an ability to operate proportionately, and that gets us into some difficult debates about the images online.
Liz Saville Roberts
Q
Assistant Commissioner Hewitt: It is partly about how the investigation is run. There may be circumstances in which someone could run an accidental defence, but it seems unlikely to me. Not only do you have the evidence that the individual provides you with from what is on their phone, but often, in many of the places where this is happening, you have evidence from internal CCTV—in a supermarket, on a train or wherever. The point for me is that we then ensure that we utilise the mechanisms we have, such as the victim impact statements, when we are prosecuting. The evidence from the victim and the impact on them can very clearly be presented in court. Frankly, even if someone did try to say that it was done accidentally, that would not change the distress caused to the person realising that someone had taken a photograph up their skirt. Whether they could successfully run a defence that said, “I accidentally did that”, would depend on the way in which we conducted our interviews and how the CPS carried out the prosecution.
Andrew Jones (Harrogate and Knaresborough) (Con)
Q
Assistant Commissioner Hewitt: You look at all the circumstances. When the figures are produced on other sexual offending, for example, there will often be a lot of criticism levelled at us about people who get cautioned. We will, on occasion, caution people for rape offences, but if your victim and your offender have mental health issues or a mental impairment, we will take decisions based on all the circumstances. You are looking at the circumstances of the victim and of the offender, and on that basis, you will make a judgment. If you have an adult offender and a child victim, that is clearly an aggravating factor, but you will also have mitigating factors, as I said. If you have two 15-year-olds or 14-year-olds, there are mitigating factors around that, but as you alluded to in your question, if it emerges that that 14-year-old offender has done it on numerous occasions, or there is a repeated pattern of behaviour, again, that would clearly be an aggravating factor.
We would then work with the Crown Prosecution Service to identify what the correct disposal and the correct charge would be—probably the charge would be the same—and whether we would dispose of it in a charge way or whether we would use some other form of control. It is difficult to come up with a clear line. It is about individual cases and looking at the circumstances, including the nature of the offence, the nature of the victim and the circumstances of the victim and the offender. When you work against those three areas, in the centre of those criteria or questions, you come up with what you think the most appropriate position is.
We are facing that a lot with people who are sharing images. If a teenager takes an image of another teenager, having possession of that is an offence. Once you pass that around, that is another offence. We have to constantly ask the question, proportionately, what is the right thing to do? Is that the ill-advised behaviour of a 15-year-old who needs to learn some lessons and change what they do, or are they someone who needs to end up in the criminal justice system? That is a constant balancing act, particularly when you bring juveniles into play. Equally, you could get someone who does it and who has a mental health condition. They may be a 30-year-old, but they may not have the capacity of a 30-year-old. Every case will have to be dealt with on its own merits.
Wera Hobhouse
Q
Is it not very important, therefore, that the law is clear and that it makes all upskirting a criminal offence, full stop—no ifs, no buts? You have described a situation where you could say that an image had been taken accidentally, but someone would still end up in a court situation. Would it not be much better if the law was so clear that every upskirting was an offence—so that you would not get all these people in—because we all know it? Is that not the case?
Assistant Commissioner Hewitt: Absolutely. We always seek very clear laws, which make our job a lot easier. Defences will always be run, and some of them will have some credibility, although I would guess that most will not in this sort of instance. For me, that is absolutely right. Having that clarity around an offence that we know is taking place—and, as I said, with the kind of access people have to their phones—is really important.
Equally, the other reason that I think that is important is that this does not sit in isolation; it is part of a continuum of sexual offending. Of course, it is not a contact offence, but it is part of that continuum, and it is absolutely right that we send a clear message that it is unacceptable to do any acts that are motivated by sexual gratification and have a victim on the other end. That starts with this, but it works through sexual assault and right into rape offences. We need that clarity, which will allow us to deal with it. As I say, you deal with it proportionately once you have the investigation.
Julian Knight (Solihull) (Con)
Q
Assistant Commissioner Hewitt: I agree with that entirely. As I just said, if you can reach absolute clarity in legislation, which makes it very clear where the line is and whether you have stepped over that line and that that is an offence, that is absolutely beneficial from our perspective. As we said, we can work out fairly clearly the kind of place where this happens. There has been lots in shops and supermarkets, on transport, and, as you say, at festivals, nightclubs and pubs. Having legislation that makes it very unambiguous for the people running those licences and events, so that they can be clear to everybody who comes into that place, is where we should aim to be. The more we hang things off and spread it, the harder it is to explain it to police officers and others.
Julian Knight
Q
Assistant Commissioner Hewitt: Yes. I introduced that concept of image-based sexual abuse, but that was just to make the point that there is a range of ways that people can offend using digital imagery. It was not to suggest that we ought to make this any less clear than it would appear to be. The one exception that I might make around that is whether there is a potential to add an element around distribution or sharing of that image, because, at the moment, the legislation does not go to that stage. As I said, there is some evidence that there are places where people go to upload these images. I think that is taking that offence to a further stage and is adding to the backdrop. That may be worth considering, but we should have absolute clarity about the core elements of that offence.
Stella Creasy
Q
Assistant Commissioner Hewitt: I am not sure that I can answer that question, but I understand the point you are making. It feels to me that the intrusion of going in and under a garment—the skirt; I know you don’t have to physically—takes it to a slightly further stage than an image of somebody that is taken clearly outside their clothing. You are in the same territory, but I do think there is something particularly invasive about somebody being able to take an image up a skirt. But I understand the point you are making.
Stella Creasy
Q
Assistant Commissioner Hewitt: If you have not given consent to somebody to take a photograph that is sexualised, you have not given consent to them. I accept that point entirely. That takes us to the last question about clarity. To my knowledge, the phenomenon we are facing, particularly at the moment, is this phenomenon of upskirting, and it would be really good for us to be able to send a very clear message. I get that someone taking a photograph of someone’s breasts or backside from other angles is offensive, but I am not sure—I think it might confuse.
Stella Creasy
Q
Assistant Commissioner Hewitt: I am not sure the circumstances you describe are about misogyny. For me, that is about somebody who is a more serious predatory sexual offender. I see this in sexual offending terms. I will be there on Thursday as part of the debate you describe.
Stella Creasy
Q
Assistant Commissioner Hewitt: That is for the debate on Thursday. I do not want to pre-empt that debate. For me, this is about sexual offending. If it is proven that an individual has done this repeatedly, or has followed certain people, or is putting himself in certain places to do that, that is an aggravating factor that I would expect the prosecution—and ultimately, if they were convicted, the sentencing—to take into consideration, as opposed to the person where it appears to be a one-off issue.
Stella Creasy
Q
Assistant Commissioner Hewitt: But this will be women, in the way the Bill is drafted at the moment, will it not?
Stella Creasy
Q
Assistant Commissioner Hewitt: That sounds fairly complex to me and you would have to ask the courts to answer that question. I see where you are going. I think I would keep this more purely in the realm of sexual offending and the pattern of behaviour of that person as a sexual offender. Whether that is about an approach in a relationship with women is a different thing.
Stella Creasy
Q
Assistant Commissioner Hewitt: I do think we should be tackling them; it is just whether this is the right legislation to tackle them with. I think the courts will have to consider that.
The Chair
We have three minutes left. I cannot call other Members because I must bring the Minister in at this stage. We have to finish at 10.30 am.
Lucy Frazer
Q
Assistant Commissioner Hewitt: Yes, we need that clarity, which covers the act itself. From the way I have seen the legislation drafted, that seems fairly clear to me. As with any crime, you are then looking to the motivation of the offender. In this instance, as we discussed in one of the earlier questions, clarity about the motivation around their personal gratification, and clarity about the impact on the victim as well, is really important to allow us to be able to balance both those elements in prosecuting.
To be honest, it is quite hard to think of another motivation for taking a photograph up someone’s skirt. The Bill seems pretty clear to me in the way it is drafted at the moment. As someone who has investigated quite a few crimes over the years, I would be fairly confident that if I had the evidence that somebody covertly took a photograph up someone’s skirt and I had the evidence of what that photograph showed, I would be in a pretty good position to get that person charged with that offence—or whatever disposal we chose. It seems pretty clear to me.
The Chair
Thank you. I apologise to those Members who have not been called this morning. I have made a note of the names and I will endeavour to give at least some sense of priority this afternoon. I apologise, but the clock has beaten us.
Mr Hewitt, thank you very much for taking the time and trouble to see us and for the excellent evidence that you have given. We know how busy you are and how precious your time is. I think I am probably right in saying I am the only person in the room who has also held a warrant other than you and I particularly appreciate the fact that you are here this morning. The Committee will sit again at 2 o’clock this afternoon and we shall hear evidence from the Chair of the Women and Equalities Committee.
Counter-Terrorism and Border Security Bill (Seventh sitting)
(5 years, 9 months ago)
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The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Chair
Good morning. The selection list for today’s sitting is available in the Committee Room. Copies of written evidence the Committee has already received are also here. I should just mention that there has been, with the agreement of the Chair, a slight change to the groupings, and amendment 43 to schedule 3 has been included with amendments 24, 25 and 42.
Schedule 3
Border Security
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I beg to move amendment 24, in schedule 3, page 46, line 37, at end insert,
“provided that the person is at all times able to consult with a solicitor in private.”
The Chair
With this it will be convenient to discuss the following:
Amendment 43, in schedule 3, page 46, line 37, at end insert—
“(7A) The examining officer may require that the detainee consult only a solicitor who has been approved by the Law Society for providing advice to persons detained under the provisions of this schedule.”
Amendment 25, in schedule 3, page 47, line 29, leave out paragraph 26.
This amendment would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity.
Amendment 42, in schedule 3, page 47, line 31, leave out “and hearing” and insert “but not hearing”.
Gavin Newlands
It is a pleasure to see you in the Chair again this morning, Mrs Main.
We have already had a wide-ranging debate on schedule 3, with more to come. Amendments 24 and 25 would delete provisions in the Bill that restrict access to a lawyer for those detained under schedule 3. Specifically, they would retain the right of an individual to be able to consult their legal representative in private, away from a relevant officer.
As I mentioned in my previous contribution, being able to speak with a legal representative in private is a fundamental human right that should not be infringed. In oral evidence, Michael Clancy of the Law Society of Scotland spoke about the fundamental importance of this:
“If we want people to be in a position where they can freely discuss matters with their legal representatives, we have to preserve this value. It is key to the rule of law that people can discuss matters openly with their legal representatives so that the solicitor, advocate or barrister is in a position to advise properly on what avenues are open to the person. Clearly one would want to ensure that that was adequately protected.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 49, Q103.]
The Law Society of England and Wales also raised concerns, suggesting that the proposals risk the excellent reputation across the world of the UK justice systems—I add the plural to Richard Atkinson’s words. In oral evidence—an aspect of this quote has been raised before—he said:
“The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 28, Q63.]
For a full house of views on that, Abigail Bright of the Criminal Bar Association said:
“That is deeply concerning and wholly new. ‘Radical’ is a well-chosen word here; it is a radical departure from anything known to English law. My view, and the view of the specialist Bar associations, is that it is unnecessary and undue, and that it would not in any way be a serious improvement on the powers available to law enforcement agents.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 58, Q129.]
In my view, if the schedule is left unamended, it risks infringing a basic, fundamental right that has been in place for hundreds of years, as the legal profession says. It is unnecessary and undue, and it would not be a serious improvement on the powers available to law enforcement. Access to a lawyer—fundamental access to justice—is something we should not compromise on.
Nick Thomas-Symonds (Torfaen) (Lab)
It is a pleasure to serve under your chairmanship, Mrs Main.
We had a wide-ranging debate on this issue in Committee last week. I want to raise the specific issues in amendments 42 and 43 and to support what the hon. Member for Paisley and Renfrewshire North said about the importance of legal professional privilege. It is obviously a cornerstone of our criminal justice—indeed, our justice—system and is admired around the world as a gold standard, as the hon. Gentleman pointed out.
However, in the cases we are talking about, it is not as if we must have a trade-off between two purist positions. In my view, there is a simple, practical solution to the problem before us, which should satisfy the Government’s concerns about people who are detained passing on messages to others through a lawyer who either acts knowingly or is not in the know. I responded to the Minister on that point last week.
Legal professional privilege is circumscribed by the codes of conduct that govern lawyers in our country. No lawyer can be a party to an illegal act, and they have, of course, to be very mindful of money laundering regulations. The practical solution I suggest in amendment 43 is that the Law Society approve solicitors to provide advice to persons detained. Such solicitors would be subject to the professional code of conduct, which would plug the gap in the legislation as it stands, with people simply not having access to a lawyer at all.
I put that suggestion to Richard Atkinson, the co-chair of the Law Society’s criminal law committee, in the 26 June evidence session. I said:
“From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.”
Richard Atkinson replied, “Absolutely. Again, code H”—he was referring to the Police and Criminal Evidence Act 1984—
“allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q56.]
This proposal would not involve a large number of cases. The Minister will recall his own questions to Richard Atkinson, when he asked whether a lawyer would be required every single time there was a stop, which clearly is not the point. The provisions apply only when we get to the questioning stage, as set out in the evidence.
The right to private legal advice can be maintained if we adopt the idea that solicitors approved by the Law Society can provide that advice. The arguments that the Minister made against the proposal last week—that those lawyers would somehow inadvertently hand on information—are incredible. These lawyers would be subject to training in this area and would have to act with the highest professional standards. Nor would it be a restriction on the right to confidential legal advice to have a limited number of, say, panel lawyers who are able to provide it.
I urge the Minister to go back and look at this proposal for Report stage. The Government’s concerns can be allayed if they put in place a practical scheme that would be limited only in terms of the number of people who would have to deal with it but that would have the crucial effect of maintaining the very important principle of legal professional privilege, upon which our criminal justice system is based.
The Minister for Security and Economic Crime (Mr Ben Wallace)
Good morning, Mrs Main. I am delighted to serve under your chairmanship.
The challenge is that we are losing sight of what a schedule 7 or a schedule 3 stop is: it is to establish the purpose and intent of an individual travelling at our borders. The vast majority of the current stops under counter-terrorism measures are for people leaving the country and not returning. We do them in an environment in which the new challenge is the digital data that people are carrying with them.
If we were standing here in 1992, the limit of the examination would be what people had on them—what they had in their bag and pockets. Those things can currently be examined; the power to stop someone to do that, in public or in private, has been in existence for many years, whether it is a customs and border stop or simply an immigration stop. Some of that is purely screening and may take minutes, which was part of my questioning to the Law Society of England and Wales when it gave evidence.
The core of these schedules is to establish that purpose and intent. Because of the challenge of digital media, it is obviously harder to establish that in the shorter periods you might have been able to do it in in the past. That is why the last Labour Government introduced the power in 2000. If we magnify these things, 18 years on, when everyone has a smartphone—not just a mobile phone—which can carry gigabytes of data, we can understand the potential challenge our law enforcement agencies face at the border.
That, at its heart, is what this stop is about. It is not about an interview under caution at a police station, which can usually be an integral part of the investigation and evidence. The verbal evidence given in these stops is not admissible in court, so if I give up information in my interview, that cannot be used in itself as the basis of a prosecution. That is why that is there.
Nick Thomas-Symonds
I am grateful to the Minister for giving way. All that he has said so far is perfectly fine. It is just that there is a specific provision in the Bill that allows for an examining officer to overhear what is said between lawyer and client. The Government’s justification for that is the concern that the lawyer would, somehow, inadvertently pass on information. I have suggested a practical solution—I put it to Richard Atkinson of the Law Society in the evidence panel—that would deal with all the concerns the Minister has put forward so far, but also maintain legal professional privilege. What is wrong with that suggestion?
Mr Wallace
I will come to that. I am setting the scene of why we need this power.
Then we come to the two amendments and the ancient right to access a lawyer and legal advice. First, on the right to a lawyer, if you are detained beyond an hour at these stops, you then have a right to a lawyer. I suspect that, in 2000, when this law was introduced by the last Labour Government, it was decided that an hour was a reasonable time for that type of screening examination, which is similar to the question, “Could I search your bag?” from a customs officer and so on. That was a reasonable time. When you go beyond that hour, you have the right to a lawyer.
Another part of that very old and dear right within the UK legal system is the right to have a lawyer of your choice. It is not just, “And here is a selection of vetted lawyers decided by the state.” There are two rights here. The hon. Member for Paisley and Renfrewshire North talks about the right to access a lawyer.
Nick Thomas-Symonds
The last characterisation is simply so open to challenge: the idea that there are panels of lawyers for so many different things. My suggestion simply brings the law in line with what already exists in the Police and Criminal Evidence Act 1984, and that was why the Law Society agreed with it. This idea of the state choosing the lawyer simply does not hold water, given the reality of the legal profession. In addition, in terms of what we are talking about—legal professional privilege—confidentiality is the key. It is not about the right of access, but the right of confidential discussion, and it is justification for taking that away that is the big concern.
Mr Wallace
I will get to that. Whether it is the Law Society or the state that defines the duty roster, the point is made that a detained individual should have a right to choose their own lawyer. The Law Society can produce a panel or a duty solicitors’ roster, but that does not impinge on someone detained in a police station tonight saying, “Thank you for that. I am going to pick my own lawyer.”
Nick Thomas-Symonds
I am grateful for that. Could the Minister indicate, then, whether it is the Government’s intention to repeal the Police and Criminal Evidence Act 1984, which already includes a provision like this one?
Mr Wallace
Let me get to the next bit, which is also about the right not to be overheard—for legal privilege to be protected—and the idea that that is somehow absolute. It has never been absolute. The justification for that not being absolute was that the last Labour Government introduced paragraph 9 of schedule 8 to the Terrorism Act 2000, which says:
“A direction under this paragraph may provide that a detained person who wishes to exercise the right…may consult a solicitor only in the sight and hearing of a qualified officer.”
The principle of, effectively, allowing the law enforcement agencies to do that, subject to chief officer authorisation, is not a new precedent that we are setting, as the hon. Member for Paisley and Renfrewshire North seems to suggest. It has existed for 18 years. The last Labour Government viewed that as important enough for it to happen when it applies to TACT offenders in a police station setting, never mind in a schedule setting. That is where that policy idea came from. It has not been rustled up in the last year. It has been around for 18 years.
If I was arrested tomorrow morning and taken to a police station, rather than the border, and I wanted to consult a solicitor, I would find that, if there were reasonable grounds—or stronger than that—and the chief officer gave permission, that discussion could, on a very few occasions, be listened to. It is not at all about “inadvertently”; it is about the few individuals, who, as I witnessed in the early ’90s, exploit that relationship for the simple purpose of tipping off or undermining or disposing of evidence. Under those circumstances, the power has already existed.
I bring the hon. Member for Torfaen back to the point of this schedule stop. What is this stop really about? The verbal evidence given is not admissible in court, and this is not the same as sitting in a police station. This is about effectively establishing the intent, the identity and the basic details at the time of a border stop.
Given that we are a free and open society, it is at our border that we are most vulnerable. Once someone is within our community, because of the way we live our lives, quite rightly, they have free movement and free everything. I am delighted that those are our values, but if we are to keep that special, and maintain that freedom within the United Kingdom, we have to be able to give that power for the simple purpose of establishing the intent—the who and the what—at our border.
The new schedule applies to hostile state activities and to people who come here to attack and undermine the very state that allows us to enjoy those freedoms. That does not put in peril the strength of our justice system and the right to a lawyer and to a fair trial—I am a Scot, and we take a slightly different philosophical view on the right to a jury, which is a very Norman thing in England and Wales. That is why I believe that these measures are proportionate and necessary to keep us safe, and I do not believe that going back on the principle established 18 years ago would keep us safe; in fact, we would be unpicking well-established law.
Funnily enough, in my two years as Security Minister, I have had lots of representations on the use of schedule 7 and whether people have a right to compensation, whether the schedule is abused, and whether we should be cleverer and faster in using it, so it does not impinge on people’s journeys. I have not yet had a representation in those two years to ask for paragraph 9 of schedule 8 to the Terrorism Act 2000 to be undone. Therefore, the Government will not accept these amendments and will leave the schedule to stand, for the purpose of screening the who, what, where and when at our border and of taking into account the large amounts of data some of these individuals carry on their way into this country.
Gavin Newlands
In the debate on the previous group of amendments, I indicated that I would keep my powder dry until this group. I have listened carefully to the Minister, but in making the point that each suspect should be able to consult a lawyer of their choosing, he seems to be arguing against some of the provisions in his own Bill. For that reason, I wish to press my amendment.
Question put, That the amendment be made.
The Chair
We would now have come to amendment 47 to schedule 3, but the hon. Member for Cardiff South and Penarth is not present to move it, so it will not be called.
Schedule 3 agreed to.
Clause 21 ordered to stand part of the Bill.
Schedule 4
minor and consequential amendments
Mr Wallace
I beg to move amendment 48, in schedule 4, page 78, line 30, at end insert—
“Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 196)
28A (1) In regulation 4(2) of the Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 (exceptions from requirement to make a determination in respect of an individual’s financial resources), after sub-paragraph (a) insert—
‘(aa) is detained under Schedule 7 to the Terrorism Act 2000 or under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2018;’.
(2) Nothing in sub-paragraph (1) affects any power under the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) to revoke or amend any provision of the regulations amended by that sub-paragraph.
Civil Legal Services (Remuneration) Order (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 201)
28B (1) In Schedule 2 to the Civil Legal Services (Remuneration) Order (Northern Ireland) 2015 (advice and assistance)—
(a) for the title to Part 2 substitute ‘Matters other than those relating to PACE, Schedule 7 to the Terrorism Act 2000 or Schedule 3 to the Counter-Terrorism and Border Security Act 2018’;
(b) in the title to Part 3 after ‘matters’ insert ‘, Schedule 7 to the Terrorism Act 2000 matters or Schedule 3 to the Counter-Terrorism and Border Security Act 2018 matters’;
(c) in note (1) to Table 1 in Part 3 (which refers to work relating to interviews conducted under the Police and Criminal Evidence (Northern Ireland) Order 1989), at the end insert ‘, Schedule 7 to the Terrorism Act 2000 or Schedule 3 to the Counter-Terrorism and Border Security Act 2018’.
(2) Nothing in sub-paragraph (1) affects any power under the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) to revoke or amend any provision of the Order amended by that sub-paragraph.”
This amendment would ensure that provision of legal advice and assistance, and the remuneration payable for such advice and assistance, to persons detained in Northern Ireland under Schedule 7 to the Terrorism Act 2000, or under Schedule 3 to the Bill, is available in the same way as applies in relation to persons arrested and detained under the Police and Criminal Evidence (Northern Ireland) Order 1989.
Mr Wallace
Amendment 48 relates to the new hostile state activities ports power in schedule 3. Paragraph 27 of schedule 4 already makes provision for persons detained under schedule 3 in England and Wales to be eligible for legal aid in order to pay for legal advice and assistance they obtain concerning their detention.
Amendment 48 makes analogous provision for Northern Ireland. It brings the provision of legal aid and assistance for individuals detained in Northern Ireland under schedule 7 to the Terrorism Act 2000 or schedule 3 to this Bill, in line with what is currently provided for when an individual is arrested and held under the Police and Criminal Evidence Act 1984.
Before the hon. Member for Paisley and Renfrewshire North asks, “What about Scotland?” I can advise the Committee that the Scottish Government will bring forward any necessary secondary legislation to make equivalent provision in Scotland.
Amendment 49 is consequential on the changes we are making to the notification regime for terrorist offenders. Paragraph 40 of schedule 4 amends the notification requirements in respect of foreign travel so that a terrorist offender must inform the police of any intended foreign travel and not just, as now, any foreign travel lasting three days or more. Amendment 49 ensures that this change flows through to the requirement on a terrorist offender to notify the police of their return to the UK.
Nick Thomas-Symonds
I rise simply to support the Minister’s position. They both seem sensible amendments in that context.
Amendment 48 agreed to.
Amendment made: 49, page 80, line 27, in Schedule 4, at end insert—
‘( ) in regulation 5 (notification of return), in paragraph (1), omit “for a period of three days or more”.’ —(Mr Wallace.)
Regulation 5 of the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009 requires a person to whom the notification requirements apply who leaves the United Kingdom for a period of three days or more to notify the police of the date of their return and the point of their arrival in the United Kingdom within three days of their return (if they did not notify this information before leaving the United Kingdom). This amendment would ensure that regulation 5 applies to a person who leaves the United Kingdom for any period of time instead of only for periods of three days or more.
Schedule 4, as amended, agreed to.
Clause 22
Notification requirements: transitional provisions
Question proposed, That the clause stand part of the Bill.
Mr Wallace
Clause 22 is a very exciting clause. It makes transitional provisions in respect of the changes to the notification scheme for terrorist offenders made by clauses 11 and 12. The changes will apply to terrorist offenders who are made subject to the notification requirements after clauses 11 and 12 come into force, as well as those who are subject to such requirements when the changes take place. Generally, that means that a terrorist offender who is already subject to the existing notification requirements must provide the police with the additional information within three months of the provision coming into force—in effect, within five months of Royal Assent. The police will ensure that existing registered terrorist offenders are informed of the new requirements being placed upon them.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23 ordered to stand part of the Bill.
Clause 24
Extent
Question proposed, That the clause stand part of the Bill.
Mr Wallace
This is a standard clause that sets out the territorial extent of the provisions in the Bill. As counter-terrorism is a reserved matter, the majority of the provisions apply to England and Wales, Scotland and Northern Ireland. Although the Bill relates to reserved matters, it clearly affects criminal justice agencies across the United Kingdom and local authorities in Great Britain and, accordingly, we extensively consulted the devolved Administrations on its drafting.
A number of the provisions have a more limited extent, in particular clause 8, “Extended sentences etc for terrorism offences: England and Wales”. There is a separate sentencing framework in Scotland and Northern Ireland, and clauses 9 and 10 respectively make similar changes to extended sentences there. In addition, clause 14, “Traffic regulation”, clause 18, “Persons vulnerable to being drawn into terrorism” and clause 19, “Terrorism reinsurance” pertain to England and Wales and Scotland only in line with the existing legislation amended by the clauses. Clause 24 also contains provision to apply certain provisions of the Bill to the Crown dependencies by Order in Council. In the normal way, that would be done only with their agreement and, indeed, at their request. The working assumption is that if any of the Channel Islands or the Isle of Man wish to make provision similar to that contained in the Bill they will bring forward legislation in their own Parliaments.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25 ordered to stand part of the Bill.
Clause 26
Short title
Question proposed, That the clause stand part of the Bill.
Mr Wallace
So that we do not suffer the criticism that we have galloped through a Bill that both sides of the House think is incredibly important—I have consulted hon. Members throughout the process—it is important that on this final clause, before we get to the new clauses, I simply speak to the title. The clause provides for the short title of the Bill.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
The Chair
We should now come to new clause 1, tabled by Mr Doughty, but he is not here so we will skip over it and go straight to new clause 5.
New Clause 5
Fundraising for victims of terrorism: restrictions on profits
“(1) Organisations that provide services for the purposes of raising donations shall not be entitled to profit from those services where the conditions in subsection (2) are met.
(2) The conditions referred to in subsection (1) are that—
(a) the purpose of raising funds is wholly or substantially to support persons who have sustained a loss due to acts of terrorism; and
(b) the persons donating the funds are doing so without any expectation of personal benefit.
(3) In this section “profits” means any income derived from providing services for the purposes of raising donation in excess of the cost of providing those services.”
This new clause would mean that organisations such as online donation platforms would not be able to make a profit from supporting charitable fundraising for those affected by acts of terrorism.—(Neil Coyle.)
Brought up, and read the First time.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
I beg to move, That the clause be read a Second time.
It is a pleasure to serve under your chairmanship, Mrs Main. We got here slightly quicker than I expected.
The new clause would mean that organisations, including online donation platforms, would not be able to make a profit from helping to collect funds donated for the people affected after terror attacks. It is in effect a no-profiteering from terrorism clause. As Members might know, some online platforms are designed to help raise funds for good causes. The most famous of all is JustGiving. The Institute of Fundraising praises JustGiving and makes it clear that that site alone raises vital funds for a whole host of charitable causes. Millions of pounds are being generated that simply were not there before or were not as easily raised previously, and JustGiving deserves credit for its innovative approach and engaging systems. Its site is used by many individuals for single and small causes and collections.
My wife used JustGiving recently to raise money for St Christopher’s Hospice, who so carefully looked after her father when he passed away in 2016. I use JustGiving every year when I do a sponsored sleep-out for the Robes Project. We sleep outside Southwark cathedral on the last Friday in November. Members are welcome to sponsor or join me there. It is not every night that you get to sleep with the bishop. The project raises vital funds for homelessness and for shelter and accommodation across churches in Southwark and Lambeth, so please sponsor. If Members do not wish to sponsor me personally, in my constituency Sophie Willis is using JustGiving to raise funds for a range of rare conditions, including mast cell activation disorder and Ehlers-Danlos syndrome. They recently had an event that many Members might have attended here at Westminster.
I am not saying that people should not use JustGiving. Single issues and small fundraising schemes help to boost charity coffers considerably and that is to be welcomed. JustGiving describes itself as a “tech-for-good” company aimed at growing the giving community and it has a demonstrable experience of raising additional funding. As well as the ordinary campaigns that JustGiving helps to raise funds for, it also covers the extraordinary. It helps to collect donations after major events. Specifically, it is the huge campaigns born out of public generosity after catastrophic incidents, such as terrorism, that raise significant and legitimate concerns.
Many of those who use JustGiving do not know that it has a blanket policy of taking 5% of all funds raised. That is on top of administration fees and over and above the charges levied to charities to use its site, which can be as much as £39 per month. I understand from JustGiving that it has about 25,000 charities signed up. I simply do not believe that everyone using the site realises that their donations do not wholly go to good causes, nor do they know the margins involved. I think many would be disturbed to find out the truth that not all their contributions reach the target that they wish, and the sums provided by members of the public can be significant. The British public is a generous beast who donated millions after Grenfell and the Manchester Arena attack, for example. Members might have seen Matt Dathan’s coverage on this issue in The Sun, and I thank him and the paper for covering the topic.
The Sun revealed in June that JustGiving took more than £200,000 in what it calls “revenue” from Grenfell donations. Many people would find that distasteful, to say the least. My right hon. Friend the Member for Warley (John Spellar) raised that specific example and stated that JustGiving,
”should see sense and cough up”,
because of public concern. However, JustGiving has not listened and nor has it adapted its policy. Worse still, it applies the same 5% blanket take even after terror attacks. I find that unpalatable.
After the Manchester Arena bomb in May last year, JustGiving pages raised more than £5.5 million in donations from people wishing to help the families of the children killed and injured. That meant a profit of more than £277,000. Imagine the difference that that quarter of a million could have made to the lives of those affected. It was intended to help those traumatised, devastated and in shock. Instead it was taken from the pockets of the intended beneficiaries and trousered by JustGiving.
It is also estimated that, from public donations intended to help the people and firms affected by the terror attack at London Bridge and Borough market last June in my constituency, JustGiving took a profit of almost £70,000. Not all the public donations intended to help have gone on to reach the people affected, not because of the lack of will or interest of those making the donations, but because of JustGiving’s insensitive policy. Such a shocking system simply must be changed. When JustGiving transferred the public donations raised after the terror attack in my constituency last June, the amount provided to the Borough Market Trust was £95,000. JustGiving apparently then made a donation of its own. It gave £900 out of its £17,000 profits from public donations. Some have suggested that that was guilt money.
Nick Thomas-Symonds
Let me briefly add my support to what has been said by my hon. Friend the Member for Bermondsey and Old Southwark. I pay tribute to him for the work he has done on this issue and a number of others in light of the terrible events at London Bridge and Borough market in his constituency last year. I think he highlights an important issue that is of great concern to a number of people, and I am pleased to support the new clause he has put forward.
There is great concern about the issue. My hon. Friend was right to draw a distinction between the costs of administration and clear and excessive profits. I do not think anyone is suggesting that there is a problem with having an administration cost or that those organisations involved in raising money in what are often emotionally charged and difficult circumstances need to be able to cover the costs of administration. The concern is about excessive profits being made by those particular organisations, and that concern has been expressed by my constituents. People have no objection to giving money, and they want to give money. There is great charitable intent among the British public, particularly when coming together after terrible events, but there is great concern about giving money some of which is siphoned off for clear profit for another organisation in the most awful circumstances. I support what my hon. Friend said, and I hope that the Minister will give some reassurance on this matter.
Mr Wallace
The hon. Member for Bermondsey and Old Southwark made, as with his other points, a passionate appeal to do something about this issue, as a direct result of working with his constituents in Borough market. Charities in this country do an incredible amount of work. I think the public gave more than £10.3 billion to charity in 2017. As a British citizen, I am incredibly proud that it is still in our nature to contribute to a range of charities. The establishment of the Charity Commission has played a hugely important role in supporting and helping to co-ordinate the work of fundraisers and charities in responding to such major incidents.
We should also reflect that it is not the incidents that define people’s hurt, need and suffering. The pain and goodwill of the husband, wife, brother or sister of someone desperately trying to raise money for an operation abroad, someone trying to raise money for the hospice where their father died, someone raising money to deal with someone injured in a car accident, or someone trying to campaign for change or for the NHS, for example, to produce some new treatment, are the same as those trying to support victims of terrorism. Someone who has lost their children at the hands of knife crime, not terrorism, will feel no different to, and no less a victim than, any other victims. I am not saying that the hon. Member for Bermondsey and Old Southwark suggested that.
There are emergencies all the time that result in a significant loss of life. Thankfully, they are not all caused by terrorism; in fact, they are very rarely caused by terrorism, and I would not seek to put a line on one versus another. I would not seek to say that one incident deserves a cap or a lesser fee than the other. We have to get to grips with the core of what needs to be put right.
Neil Coyle
It is different when there is an accidental need to raise, such as in the Minister’s example of a car accident, although I would hope that the NHS would cover that. Cancer was another example. Again, I would hope that NHS treatment and research would be done to try to prevent that from happening. In the context of the Bill, we are talking solely about terror attacks and those who deliberately sought to attack us, this country and our way of life. In response to that, I think a unique and different position should be adopted by the Government. Also, when we make donations we do not expect anyone to take a profit from those donations.
Mr Wallace
I hear what the hon. Gentleman says and I understand his dividing line of accidental or unavoidable, but many more people are killed in this country as a result of domestic abuse than terrorism. Many more people are killed because of knife crime or violent crime every year than terrorism. It is the same; no one went out to look for that. That is the position. We could probably debate all day where we would draw the line. That is one of the challenges we face.
The Government are committed to ensuring that victims of terrorism receive effective support that is comprehensive and co-ordinated. That is why last year we set up the cross-Government victims of terrorism unit to co-ordinate support to UK citizens directly affected by terrorist events at home and overseas. We continue to work across Government, including with the third sector and private sector organisations, to improve and strengthen the support available so that victims receive the best possible support now and in the future.
The Government’s approach to digital fundraising platforms is to promote self-regulation, with the aim of ensuring that transparency and the public interest are protected. The Fundraising Regulator, working with a number of digital fundraising platforms, has developed new transparency requirements, which it consulted on and announced just last month on 7 June. These changes were incorporated into the “Code of Fundraising Practice”, the rulebook for fundraising in the UK, and the platforms have until the end of August to make any necessary changes to their systems and processes. Most digital fundraising platforms have already registered with the Fundraising Regulator. Several platforms chose to waive or cap their fees in relation to some of the incidents last year, including the Manchester terror attack.
Alongside the updates to the “Code of Fundraising Practice”, the Fundraising Regulator has developed guidance for online fundraising platforms, to help them meet the expected standards of transparency. Guidance has also been produced to help members of the general public who want to use these platforms to ensure that they do not inadvertently breach the code and that they consider how funds will reach the intended beneficiaries.
We expect non-statutory regulation under the Fundraising Regulator to work, but as a backstop the Government have reserve powers to regulate fundraising under the Charities (Protection and Social Investment) Act 2016, should that prove necessary. We will not hesitate to do so, if that is the case.
These changes are already having an impact. One prominent for-profit funding platform has changed its practices; as well as being more transparent about its fees, it now offers donors the ability to make an additional payment to cover the fees, ensuring that the entire donation goes to the beneficiaries.
I have greater sympathy for a more directive approach when it comes to gift aid. Some digital fundraising providers include the gift aid amount when they calculate their charge. I think that is outrageous. Gift aid is taxpayers’ money that is given to charities; it is not meant for businesses that operate fundraising platforms. That is why my hon. Friend the Exchequer Secretary to the Treasury has asked Her Majesty’s Revenue and Customs to explore options to ensure that gift aid is passed on in full to the charities to which it is due.
Separate to the work of the Fundraising Regulator in improving transparency and the regulation of digital fundraising platforms, work is underway with the charity sector to better co-ordinate charities’ response to major emergencies. This programme is being supported by the Charity Commission, working closely with a range of charities, fundraisers and regulators, including the Fundraising Regulator.
In January this year the Charity Commission organised a roundtable event involving 25 charities, regulators, fundraising platforms and others, to start to develop a framework for a more co-ordinated charity sector response to national critical incidents. Attendees agreed to the principle of creating a collective framework for co-ordinating such responses. They formed a working group to develop the framework and operating principles behind any future disaster response. That work is progressing well and focuses on the themes of first response, fundraising, distribution of funds, and recovery.
I am sure that this is not the intention of the hon. Member for Bermondsey and Old Southwark in new clause 5, but we believe that, at the moment, there might be unintended consequences for reducing the charitable funds raised to help victims of terrorism. Were the new clause to become law, some of the digital fundraising platforms might stop people setting up fundraising pages for the victims of terrorism, resulting in less charitable funds being raised. There is also a risk that funds already raised by established charities, using professional fundraisers, which could have been used to support victims, could not be used for the proper purpose. There does not appear to be a clear rationale, as I said earlier, about where we draw the line. I hope that he understands why I cannot support the new clause.
I assure the Committee that work is underway to improve the transparency of digital fundraising platforms and the co-ordination of charities’ responses to major incidents, including supporting victims of terrorism. I am happy to facilitate a meeting with the hon. Gentleman and the Minister with responsibility for charities to talk that through directly. As a Security Minister, my locus is over terrorism, but the wider regulation of charities across the whole sector—all types of charities—is the responsibility of another Minister. I am happy to present the hon. Gentleman’s intentions in this new clause to that Minister and then arrange a meeting between them.
I hope that I have reassured the hon. Gentleman that we are working through the Fundraising Regulator and the Treasury to ensure that his concerns are met. At the same time, we are trying to balance the modern technology of the world, which a lot of people use to fundraise and collect donations.
Afzal Khan (Manchester, Gorton) (Lab)
I support the new clause tabled by my hon. Friend the Member for Bermondsey and Old Southwark. I am from Manchester—I am a former Lord Mayor—so I saw what happened there and I know how people feel. Millions of pounds have been raised in Manchester, because people there are generous. I think that they would find it offensive if someone was profiteering from the money they had donated in response to such a terrible attack. Is that acceptable?
Mr Wallace
I do not disagree with the hon. Gentleman. The first thing to do in a big event is get out loudly and publicly the alternative charitable telephone numbers. Telephone lines for donations are always set up, often directly to charities and sometimes through the Department for International Development—for foreign emergencies —or other Departments. That is the first path.
I am constantly disappointed by this. As an ex-soldier, I was approached by a forces charity and asked to be one of its many patrons, only to discover that a massive wedge was for the fee. The charity does not advertise that on its stall when it is raising money. The problem has gone on for too long, which is why the Government, with cross-party support, introduced the 2016 Act. That was also on the back of elderly people being ruthlessly pursued by some fundraisers. The charity sector, in many different areas, has to clean up its act. Recently we have seen sexual harassment cases in some major charities.
My worry is that those who sometimes oppose charities might seek to exploit all that. We have to get this fine balance right, because we want people to keep giving. We should be much more prescriptive about fees, we should publicise how much they are and what the alternatives are, and we must recognise that people give in many different ways. That giving costs money.
An amazing thing, which no one ever really publicises, is that during Ramadan mosques in this country raise £100 million for charitable causes. That is a huge collective effort over a short period. One of the pillars of Islam is charitable giving, but people do it differently. We have to ensure that the platforms that people use, whether verbally in the mosque or online, are supported and enabled without grotesque profits being made out of suffering.
We have therefore taken the power under the 2016 Act. The first process is to get the industry, through the regulator, to self-regulate, with us keeping a close eye on it. Where the system has been abused, we have to go to the heart of things and question motives. Abuse of gift aid, for example, makes me incredibly worried. What type of organisation does that? I hope that my hon. Friend the Exchequer Secretary takes strong and swift action—I shall reinforce his efforts—to ensure that is dealt with at once.
I hope that I have reassured the hon. Member for Bermondsey and Old Southwark. I agree with his motives but not his methods, so I ask him to withdraw the motion.
Neil Coyle
I have listened carefully to the Minister, but I am afraid that I am not reassured, for a number of reasons.
I have spoken to the Treasury about its plans and I am interested in having a discussion with the Minister with responsibility for charities, but I remain aware that JustGiving meets with charities in this country about the more immediate Disasters Emergency Committee-type approach to an international incident. It goes to the table with the charities, which are working out how best to support people through the immediate aftermath of a terror attack and the urgent need of communities affected. The fundraising platforms, however, are sitting at that table and they know that they can make a profit out of the incident and future events. Their involvement will guarantee them additional income and revenue on the back of a terror attack.
Precisely because the Bill covers terrorism, the charities issue deserves to be treated separately and can be drawn out uniquely. Terrorism, being so uniquely horrific, is clearly the reason why the public are so generous in their response. That is why the figures are so much higher after a terror attack, because people respond. The British public respond when they see children attacked in Manchester, because they want to be able to help. When they see innocent civilians enjoying a night out around Borough market, they want to donate. The large sums arising from those donations are the reason why there is more significant concern.
I had hoped that the platforms involved—JustGiving is the prime player, but there are others—would have done more to cap their own policies, but they have not done so. I do not accept the idea that they would no longer be there or that this would limit future donations, because others would always step in to fill that gap.
There is a unique opportunity with the Bill not to undermine the collective will of the British public who seek to help innocent civilians and their families. The ministerial mantra of terrorists not beating us or changing our way of life can be reflected in this new clause. It would mean that donations from the public that are designed to support the continuation of our way of life are not watered down through the profit margins of others. The Government are trying to take some action. The Minister suggests that we wait and see if that works, but we have a clause here that would do the job much quicker and better.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
I wholeheartedly agree with my hon. Friend. Platforms such as JustGiving are behaving in a very uncharitable way. The Minister has an “It’ll be all right on the night” policy, but I am reminded of when in 2017—my hon. Friend the Member for Scunthorpe was with us then—the same argument was made about the public register of beneficial interests. The Minister on that occasion said, “Let them do it on their own,” but public opinion forced the Government to climb down. I urge Government Members to join my hon. Friend the Member for Bermondsey and Old Southwark. Even The Sun has backed this campaign—
Neil Coyle
As the Member with The Sun in his constituency—News UK’s head office is at London Bridge—I am definitely proud of part of the contribution it makes on this issue. Let us leave it there. In response to what the Minister said, there is no need to wait. The new clause would do part of the job by ending the profit from some of these platforms. It does not prevent admin or running costs being collected or those platforms from existing in future, but it sustains the trust that they rely on to continue to be the go-to point for people seeking to raise money after terror attacks or other incidents. Very simply, I urge the Committee to support new clause 5.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 7—Continued participation in Eurojust and Europol—
“It is an objective of the Government, in negotiating the withdrawal of the United Kingdom from the European Union, to seek continued United Kingdom participation in Eurojust and Europol’s activities relating to preventing acts of terrorism.”
Nick Thomas-Symonds
These new clauses make it an objective in the Brexit negotiations to continue participation in the European arrest warrant, which new clause 6 refers to, and in Europol and Eurojust, which new clause 7 refers to. They are not restrictively drafted; they simply ask for that continued participation as an objective.
It is worth reminding ourselves of the great advantages the European arrest warrant gives us with regard to law enforcement and protecting our security. European arrest warrants are of course valid in all member states of the EU. They can be used to ask a state to arrest and transfer a criminal suspect to be put on trial, or to ask for someone who is sentenced to custody to be transferred to the UK to complete that sentence.
I have visited the National Crime Agency on a number of occasions over the past year—I am grateful to the Minister for facilitating those visits—and I have looked carefully at the extent to which the UK uses the European arrest warrant. In the calendar years from 2010 to 2016, the UK issued 1,773 requests. It is not the case that the European arrest warrant is not relevant to how we enforce our anti-terror laws, because 11 of those requests related purely to terrorism and a significant number related to organised crime—55 requests related to human trafficking, 206 to child sex offences and 255 to drugs trafficking. The European arrest warrant is an important tool for keeping the public safe.
Extradition outside the European arrest warrant
“can cost four times as much and take three times as long. It would mean an end to the significant exchange of data and engagement through Europol. And it would mean the UK would no longer be able to secure evidence from European partners quickly through the European Investigation Order”.
Those are not my words but the words of the Prime Minister about the importance of the European arrest warrant. It is vital that we seek continued participation.
There is a concern about Europol, and the Minister would do well to provide reassurance by backing new clause 7. Denmark is a recent example of a country leaving membership of Europol but maintaining access. Its experience should give the Minister pause for thought. In a referendum in 2015, Danes rejected a proposal to end the country’s full opt-out on home and justice matters and convert it to a version that would have allowed opt-outs on a case-by-case basis. That meant Denmark’s full membership of Europol was brought to an end and it was left having to negotiate a more restrictive access agreement, which stated:
“Irrespective of any access restrictions, Europol shall notify Denmark of any information concerning it if this is absolutely necessary in the interest of preventing imminent threat to life.”
Denmark continues to pay an annual sum, accepts the jurisdiction of the European Court of Justice and has observer status at Europol board meetings. However, the UK will not be in the same position as Denmark, which remains an EU member. As a third country, the UK will be negotiating from a different position—a point the EU’s chief negotiator, Michel Barnier, has made more than once. Europol co-operates with third countries, but the Minister would do well to consider why that will not work in the UK’s case. It is crucial that the UK maintains access to Europol’s data.
New clause 7 also deals with Eurojust and the general tools that are available. It is vital that we have judicial co-operation on criminal matters. That was created to improve the handling of serious cross-border and organised crime by stimulating investigation and prosecutorial co-operation.
Whether people voted remain or leave, and whatever shades of opinion there are about our future relationship with the European Union, organised crime knows no borders. To keep our country safe, we have to co-operate with the EU27 and other countries around the world. The Prime Minister herself has highlighted that. I suspect that people’s attention may have been elsewhere, but she spoke clearly in her statement yesterday about the idea of a security treaty.
New clauses 6 and 7 would simply make continued participation a negotiating objective; they would not tie anybody’s hands in negotiations. They are just a common-sense statement of the need for continued co-operation in order to keep our country safe. Keeping our country safe is far more important than any political divisions or any different shades of opinion about our future economic relationship. The Government should commit clearly to these two new clauses. After all, they are only in line with what the Prime Minister has said. I therefore hope that the Minister will be able to support them.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I want to support my hon. Friend’s arguments for these new clauses. We discussed this issue at great length in the Home Affairs Committee, because continuing that security co-operation in so many areas is crucial to the functioning of our police forces and law enforcement agencies. In that regard, I was greatly concerned when reviewing the voting record of the new Brexit Secretary. I hope that the Minister will be able to address this. In 2014 the new Brexit Secretary voted twice against close working with the EU on criminal justice and associated data protection measures. He also voted against the UK re-joining a series of measures—
Stephen Doughty
I have a question for the Minister: what is his position on these matters?
The Chair
Order. We will not stray on to the voting record of another Member who is not even in this room.
Stephen Doughty
It relates to the voting of the Minister. I am glad to see that the Minister actually supported these sensible measures. They were important measures on security co-operation that relate to the two new clauses, on the functioning of the European arrest warrant, and the sharing of data in order to enforce such warrants, and on the nature of our relationship with Eurojust and Europol—crucial mechanisms that the Minister saw right to support at the time. I assume that he continues to regard co-operation with those agencies as very important. Can he be clear on where the Government’s policies are in this area? As my hon. Friend the Member for Torfaen asked, does he support us retaining that close co-operation to keep all our citizens safe?
Mr Wallace
I had hoped that the Brexit word was never going to pass anyone’s lips in this Committee. On the penultimate new clause, I had hoped we would have had the chance of a long and healthy life. Unfortunately, the word has ventured into the Committee.
The aims of the new clause tabled by the hon. Member for Torfaen are exactly the aims of the Government’s negotiating position. We want access to the European arrest warrant. We want to play a full part in Eurojust in that way. We have made an unconditional offer to the European Commission on security. However, the difference between our position and the proposed primary legislation is that we want that to be the outcome. The drafting of the new clause is flawed, as it would have a limited practical impact on the new clause. It does not oblige the Government to secure an outcome or prescribe how negotiations are conducted but merely affirms that it is a negotiating objective of the Government to do so.
It is conceivable that the Commission is already well aware of our negotiating aims—in fact, I can tell you that it is. The inclusion of the new clauses could provide the Commission with more weight to leverage those tools in the negotiations.
Nick Thomas-Symonds
I am relieved to hear that the Commission is clear about our negotiating aims, but I would not be over-confident about that. On this crucial point, I am sure if I had been too prescriptive, the Minister would be jumping to his feet saying that I had not left enough flexibility for negotiation. Given that, so far, he has hardly disagreed with anything in the new clauses, I presume it is clear.
Mr Wallace
I do not believe the place for Government negotiation is in primary legislation. The ball is firmly in the court of the European Commission. Our position is an unconditional offer on security. The only time I ventured from the shelter of security to engage publicly on a European issue was when Michel Barnier said recently, in a rather dismissive and offhand manner, that we would not have access to any of these issues as a third country. That does not reflect the examples of special relationships with Europol, of which there are at least two—probably more.
The hon. Gentleman mentioned Denmark, which is unique as a member of the European Union that has pulled out of Europol. Switzerland and Norway, which are not EU members, have good access to Europol for the sharing of data. The point is, when the European Commission has wanted to, it has extended a bespoke or special unique relationship. I venture that the United Kingdom has contributed, shaped, funded and supported many of these European organisations. Europol was created predominantly by the United Kingdom, and it shares huge amounts of our data—our citizens’ data and our intelligence—with other European countries.
It is important that our unconditionality is taken on board and embraced by the Commission. My public venture to Mr Barnier, apart from a quip about gambling with safety, was that security was not a competition. We are not talking about trade. It is about working together, where the sum of the parts is greater than the individual contributions.
Afzal Khan
As I have said, I served as a vice-chair of the security and defence committee of the European Parliament, so I am aware of how important co-operation is. Does the Minister agree that if we want to be successful against terrorism we need to improve co-operation? We have benefited from co-operation.
Mr Wallace
We absolutely have. It is not just about scale or who is better at one thing over the other; it is genuinely that in such activity the sum of the parts is greater. The United Kingdom has developed a clear lead on counter-terrorism policy through our intelligence services and police services learning to work together on domestic issues quicker than our European allies. That needs to be scaled up to working internationally. At the same time, we need to navigate the real obligation of the state to protect its citizens’ data. It is not a free-for-all.
The hon. Member for Torfaen is right, and we are totally determined to get there through negotiation. It is not that we disagree; I simply take the view that primary legislation is not the place for individual parts of a negotiation. The new clauses would not make any difference, because the Government would not be bound to the outcome but just be saying, “This is what we intend.” The Prime Minister has said what our position is and what we want. I have said it to the Committee, and we have said it to the European Commission. It has been said on a number of occasions and no piece of primary legislation will change that. We agree with the intention, and I understand the symbolism of putting an objective into the Bill, but it is not necessary. As long as I am the Security Minister and the Government are negotiating, we wish that to be the case, and that is what we are asking for.
The hon. Member for Cardiff South and Penarth worries about the new Brexit Secretary, but we are all in a team with collective responsibility and he was probably not aware in 2014 of the clear importance of intelligence and security sharing and how it makes a difference to saving lives every single day. Most recently—two weeks ago—the United Kingdom contributed a significant part towards foiling a plot in Cologne involving a terrorist who had managed to make ricin and was making a bomb to devastate that city and its people.
As long as I have breath in my body, I shall do everything I can, but I do not believe that primary legislation is the place for our negotiating objectives. I will happily arrange it for anyone who is in any doubt to visit our police officers to see how important that is.
Neil Coyle
When she was Home Secretary, the Prime Minister warned that Brexit had risks for our national economy and national security. Does this new clause not go some way towards reassuring the Prime Minister about her concerns about Brexit?
Mr Wallace
I refer the hon. Gentleman to the Prime Minister’s Munich speech in February, in which she continued to make this point about security—it is not a competition and our offer is open. The only danger to our security would be a dismissal by the European Commission out of hand and refusal to give us any intelligence or data. That would be a danger to us and to it; it would cut off its nose to spite its face.
All the Commission’s professionals, and member states’ intelligence services and police forces, are telling them that. In all my meetings with member states’ Interior and Security Ministers, they agree and concur. It is time that the Commission reflects that, because it is in the interests of European citizens to continue this relationship. It is not purely in our interest; it is in their interests, too.
The Prime Minister is absolutely determined on this point: a safer Europe is a safer Britain; and a safer Britain is a safer Europe. I do not think that will change. My simple dispute with the Opposition Front-Bench spokesperson is that I do not believe that this duty needs to sit in primary legislation.
Nick Thomas-Symonds
I am confused as to why the Minister is indicating that he will vote against the new clause, because he seems to agree with it wholeheartedly.
First, it would make a difference to put it in primary legislation. It would send a clear message to the European Commission, about which the Minister is worried; it would reassure the public; and it would also give Government Members the chance really to put country above party, by supporting the new clause. I will therefore press it to a vote.
Question put, That the clause be read a Second time.
Stephen Doughty
I beg to move, That the clause be read a Second time.
I shall begin, Mrs Main, by apologising profusely to you and to the Committee for not being here earlier for another new clause, which I did not move. I can only say that I completely misjudged the impact of a very important event that is taking place today on the Mall on the traffic, which unfortunately was in gridlock. However, you and the Committee will be pleased to know that it was only a probing measure. Because of some external feedback I have received I shall consider amending it and introducing it for discussion on Report. It was very useful feedback on the provisions on the amendment paper in any case, and I hope that that will ensure that I can supply more carefully crafted words on Report.
New clause 8 is largely a probing measure, to try to persuade the Minister to explain what is happening in this important area. It would require the sharing with relevant law enforcement agencies of a minimum amount of passenger data by travel operators for international transport beginning or ending in the UK, to check that data against relevant UK terrorism, hostile state activity and criminal databases, to allow good decisions to be made about whether to grant entry or exit. However, it also provides for restitution provisions, such as we see in the Electronic System for Travel Authorisation, or ESTA, arrangements with the United States, to prevent wrongful denial of travel, recognising that mistakes have often been made. Perhaps names have been mixed up, or there have been wrongful listings of people who have had convictions or other impacts against their names.
Mr Wallace
I am grateful to the hon. Member for Cardiff South and Penarth for setting out the proposals in the new clause, and I hear what he said about his other proposals. It would have been interesting to debate those.
As the hon. Gentleman explained, the new clause would require travel operators to share passenger data with relevant law enforcement agencies and provide for restitution provisions to prevent wrongful denial of travel. I fully share his objective of ensuring that police and others have access to passenger data, but there are already provisions for the transfer of passenger name records for immigration and policing purposes in two different immigration Acts and in the passenger name record data regulations. All of those provisions are subject to safeguards provided for in the Data Protection Act 2018. Given the extensive legislation already in place governing the provision and processing of passenger data supply, it is unnecessary at this time to provide any new powers in this regard.
Turning to the provision of restitution to prevent wrongful denial of travel, I appreciate the hon. Gentleman’s concerns, but the new clause would have unintended consequences that would fundamentally undermine vital tools that protect this country from terrorism and hostile state activity. Although new clause 8 is intended to help passengers by enabling them to provide information to police that would protect against wrongful denial of travel, it would risk undermining the current no-suspicion element of the power. The effect of the new clause would be to allow some individuals to establish the fact that information exists on them on police databases—information that had been used to inform an examination under schedule 3.
We have already debated the necessity to conduct schedule 3 and schedule 7 stops on a non-suspicion basis, so I will not take up more time by going over the same arguments again. Decisions to examine a passenger under schedules 3 or 7 will be informed by a number of considerations, not just passenger data. Other considerations may include the current threat from terrorism and hostile state activity to the UK; available intelligence; trends or patterns of travel; and observations of passengers and their behaviour while they are in a port or border area.
We know that terrorists and hostile state actors are aware of the UK’s security measures to counter their activities, and intelligence shows that they flex and adapt accordingly. If we implement the process proposed in the new clause for confirming or amending any of the data that may be used in consideration for making a stop, terrorists and hostile actors will adapt their methods of travel to minimise the chances of alerting, and being interdicted by, the police, or will recruit individuals who are unknown to law enforcement to bypass data checks.
New clause 8 would undermine the utility of the powers, and compromise police and operational partner efforts to keep the public safe. However, the hon. Gentleman makes a valid point about when the powers are used and the financial consequences that they can lay on individuals stopped, and I met him recently to discuss that; indeed, I have constituency cases on the issue.
We are doing work in response to the hon. Gentleman’s points, to see what we can do to ensure that the data we have is used at the earliest opportunity for individuals transiting through ports, and to ask stronger questions of police officers about whether measures are necessary. For example, most of the loss occurs when people are exiting the UK—while they are on the outbound leg of a holiday, rather than the return. We are asking basic questions about whether measures could wait until they return. Obviously, if the intelligence or threat is high enough that they cannot, those measures will be taken. Also, we are looking at what we can do to speed up the data at check-in at the gate.
Stephen Doughty
I thank the Minister for giving way, and I have listened carefully to the arguments he has made on the other parts of the new clause. On the issue of speed, is he satisfied at the moment that all airlines, in particular, are sharing information quickly enough, and that their systems allow that to be done, so that we can detain people who might be going to commit acts and ensure that we do things at the earliest possible stage?
Mr Wallace
I believe the airlines are, but of course some of the data is held by airports. If someone checks in at security, that may, at the moment, be airport data, not airline data. How can we get that data to our police in a timely manner so that the most appropriate time is when I emerge from check-in or my baggage search, rather than when I am on an aeroplane, or just about to get on an aeroplane, and the clock is ticking down after I have been shopping in the terminal and so on?
I am absolutely determined—I picked up on the hon. Gentleman’s points from our meeting—to see what we can do to improve that. It slightly depends on the age of the airport and how its systems work. For now, I am content to see how that work goes, to see which airports can do that and which cannot, and to feed into the data other information that the police might have to better inform them.
I am not sure we will get many challenges from the Russian, or the hostile, state, but, in the terrorism space, if the powers are to continue to have predominant public support for their necessity, we have to ensure that they are targeted and sympathetically used—I do not want the powers to end up in the same debate as stop-and-search, which made that a toxic power for so long. I will be pressing to ensure that that happens, and I will happily update the hon. Gentleman.
Stephen Doughty
I thank the Minister for his comments. On the basis of what he said, I am happy not to press the new clause at this stage. I ask that he keeps this matter under review and looks at it closely, because we need to ensure that information is shared as quickly as possible, both from the point of view of keeping the public safe and ensuring that the powers are used effectively. We need the co-operation of all travel operators, airports and ports of entry and exit as much as possible. However, given what the Minister has said, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Mr Wallace
On a point of order, Mrs Main. Before we draw to a close, I would like, to conclude these proceedings in an orderly manner, to put on the record my thanks for your chairmanship and Ms Ryan’s chairmanship. I do not think that those on either the Government or the Opposition Benches disappointed the Chair—I hope not.
I also thank those on the Opposition Front Benches. I am always amiable to the hon. Members for Torfaen and for Paisley and Renfrewshire North, and try to accommodate them. As I set out at the very beginning, I have sought, where possible, to concede. I have conceded on the suggested improvements to clause 3—the three clicks—and to the Scottish National party about clarifying that there will be no charging for public order and the right to protest.
I do not know about you, Mrs Main, but I sat for years on the Opposition and Government Back Benches listening to the valiant efforts of Opposition MPs, who get no recognition whatever. I always promised myself that I would never allow that to happen as a Minister.
I thank my officials, who have been very patient when I have said, “That makes sense. Why can’t we do it?” to which the whole Government says, “The Minister might actually change something!” The Bill manager, in particular, has been incredibly patient. I am still determined to improve the Bill before it gets on to the statute book.
I thank the Clerks, the Hansard writers and the Doorkeepers for keeping us on the record and safe. I thank the lawyers from the Home Office, the Ministry of Justice and the Treasury, and our witnesses, who set out their clear positions at the beginning.
Nick Thomas-Symonds
Further to that point of order, Mrs Main. I echo what the Minister said, and I thank him for taking a constructive approach to the Bill—he said on Second Reading that he would do that. I add my thanks to the Doorkeepers and the Hansard writers. I am very grateful to the Clerks, in particular, for dealing with the numerous amendments I emailed in.
I thank you, Mrs Main, and Ms Ryan for your excellent chairing of the Committee. I am very grateful to all the officials for their contribution to the Bill. I thank the hon. Member for Paisley and Renfrewshire North for working so constructively, and the witnesses for giving us very helpful evidence and cause for debate throughout the Committee.
Gavin Newlands
Further to that point of order, Mrs Main. This is for the hat-trick. Thank you for allowing us to sit without ties. I thank you and Ms Ryan for chairing the Committee and for being so patient with us at certain times. I thank the Clerks, the Doorkeepers and the various officials. I add my thanks to the witnesses who came to the oral evidence session and those who submitted written evidence and briefing papers, which helped Members to draw up amendments.
I thank the Minister for being open—not quite as open as I would have liked, but open none the less, compared with other Ministers I have sat opposite in previous Bill Committees. I also thank the other Front Benchers for their assistance and co-operation.
Bill, as amended, to be reported.