Data Retention Regulations 2014

Baroness Smith of Basildon Excerpts

Tuesday 29th July 2014 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I have been through these regulations and the Explanatory Memorandum with some care and I have also taken the trouble of ascertaining the views of David Anderson QC, the independent reviewer to these regulations. There were a number of unanswered questions during Second Reading recently, particularly relating to the future role of the independent reviewer of terrorism legislation. I look forward to receiving a response from my noble friend the Minister to those questions in due course, I suspect when the answers are clearer than they were at Second Reading. However, I am totally satisfied that these regulations do the absolute minimum to give effect to the minimum requirements of the Government. The regulations provide every possible safeguard there could be in all the circumstances and I, too, hope that the House will support them.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for the care he has taken in going through the detail today and to other noble Lords who have added their comments. I do not think it is necessary to repeat the arguments and debate we had during the passage of the Bill. We recognise, of course, the necessity for retaining data information and when tackling serious and organised crime. We made that clear. The noble Lord, Lord Paddick, referred to our amendments in the other place. We think they improved the legislation and safeguards for the future. A complete review of RIPA was extremely important. We are very grateful that the Government accepted those.

As always, we have to be certain why and how we are collecting information. I think it is also clear that not only is that needed but these regulations were needed. When we had the debates in your Lordships’ House, the Constitution Committee recommended that these regulations did not wait until after the Summer Recess and I am grateful that the Government took that on board. We agreed with the committee and I am glad that the Government did. It makes sense and it is entirely appropriate that we have these regulations before us prior to the Summer Recess.

I have a couple of points that need clarification, if the Minister can help me. I think I am getting slightly confused on the six-monthly review about the roles of the Information Commissioner and the Interception of Communications Commissioner. Can he clarify what the relationship will be between them in undertaking the six-monthly review? Can he also confirm that when they review the legislation, because we have not had the time that we would normally have for consultation on these regulations, they will have the opportunity to review the operation of the regulations as well?

I am grateful to the Minister for making it clear and I think other noble Lords have added their expertise to that. Nothing in these regulations goes beyond the status quo and it is clear the Government have done the minimum necessary in the legislation. However, as he said, there will be further regulations required that extend the safeguards. Something we debated and discussed at some length—with differing views—was access to information. The Minister will recall the comments of the noble Lord, Lord Blencathra, and my noble friend Lord Rooker on this and how important it is that information is used appropriately, as well as the value of it. I know there are further regulations to come. Could the noble Lord say something about when we will see those regulations and what opportunity there will be for consultation on them? Can he also confirm that they will be approved by the affirmative procedure?

We are grateful to the Minister for bringing these regulations before us today before the Summer Recess. They have our support.

[Lord Taylor of Holbeach]

My Lords, I thank noble Lords who have spoken on this. There has been a general welcome for these regulations, as there was for the Bill in general. I appreciate the support of the House in what has been a difficult matter for Parliament to resolve satisfactorily, and I believe it has done that. I say to the noble Baroness, Lady Smith, that the regulations have passed in the House of Commons and so, with their passage through this House today—should that be the will of the House—they will come into force immediately. I am sure that is the wish of the House.

I am very grateful for the welcome given by the noble Lord, Lord Paddick, who knows how important this particular facility is in the pursuit of crime. The noble Lord, Lord Carlile, speaks of course with a great deal of authority on this issue, and I am pleased that he has spoken with his successor, David Anderson, about the impact of these matters. I assure noble Lords that the correspondence which I promised at Second Reading is in the course of being prepared. I hope that it will provide suitable holiday reading for noble Lords when they go.

The Interception of Communications Commissioner has a direct role in these regulations, as noble Lords will know. Following amendments that were tabled in the House of Commons, this was included in the Act. The half-yearly reports mean that the Interception of Communications Commissioner’s functions will include reviewing and reporting to us on a six-monthly basis. That is important. David Anderson, the current independent reviewer of terrorism legislation, will also be undertaking his review of the investigatory effects, the effectiveness of the safeguards and the capabilities. Both of these reports or reviews will provide us with further guidance for considering this matter when we return after a general election. We will consider those reports and, indeed, the report of the Joint Committee that I hope will be set up by any future Parliament so that, when the sunset on the existing Act occurs, on 31 December 2016, there will be a proper succession of this important facility to keep us safe for the future.

[Baroness Smith of Basildon]

I am sorry to interrupt the noble Lord. I asked the question because I thought that, when he spoke, he mentioned the Information Commissioner and not the Interception of Communications Commissioner. I was trying to get to the relationship between each of them when it comes to undertaking the six-monthly review.

[Lord Taylor of Holbeach]

The Information Commissioner has a role, as has been made clear. However, it is a continuing role in investigating this; it is not a question of reports or reviews. The six-monthly review is done by the Interception Commissioner, and the oversight of retained data in respect of security and deletion is a matter for the Information Commissioner. I will repeat that, because I may have got muddled in saying it: the six-monthly review is with the Interception Commissioner, while the oversight of retained data in terms of security, integrity and deletion is with the Information Commissioner. There are two different functions: one is about the review of the process, the other is about a continuing commitment to make sure that information is not retained which should not be retained. I hope I have made that clear; I am sorry for the confusion in making it so.

Motion agreed.

Anti-social Behaviour, Crime and Policing Act 2014 (Consequential Amendments) Order 2014

Baroness Smith of Basildon Excerpts

Monday 28th July 2014 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, the safe use of legal firearms is a priority for this Government. We remain committed to strengthening the effectiveness of the firearms licensing regime as necessary in order to protect people from harm. We introduced provisions in the Anti-social Behaviour, Crime and Policing Act 2014 to ensure that people with suspended sentences of between three months and three years are prohibited from possessing a firearm. The prohibition includes antique firearms and is for five years from the second day after sentence. We took this action in response to a recommendation which was made by the Home Affairs Committee in 2010. The committee recommended that persons with suspended sentences should be prohibited from possessing firearms in the same way as those who have served custodial sentences are so prohibited. The provision, which amends Section 21 of the Firearms Act 1968, came into effect earlier this month.

It was always the Government’s intention that those individuals prohibited from possessing a firearm by virtue of being subject to a suspended sentence should have the right to apply to a court to remove the prohibition. Unfortunately, this right was not included in the original provision, which is why we are seeking an amendment now. As soon as the legislation is amended, any person affected by the prohibition will be able to apply to the Crown Court, or in Scotland to the sheriff, for its removal. It is therefore important that the provision is implemented in the shortest time possible. I commend the order to the House.

[Baroness Smith of Basildon (Lab)]

My Lords, it feels like only yesterday that we had long and ongoing discussions about the anti-social behaviour Bill, and yet here we are, back already with an amendment to it. Obviously the amendment is necessary and I am grateful to the Minister for his candour in admitting that it was a mistake at the time which needs to be rectified. That is most helpful.

The order is limited, but the Minister will recall the wider discussions we had on this issue when we debated it. I was pleased to hear him say that the Government are committed to improving the system. He knows that we were critical of these clauses, and while we welcomed the changes, we did not think that they went far enough. This order is about the appeal process, which was something that was of concern to us when we looked at the granting of certificates and licences. We were critical of the piecemeal approach to making changes, and he will recall the discussions we had at the time. One of our strongest criticisms around the issue of appeals was in the area of domestic violence. We were disappointed when the Government rejected our amendment to provide that where there was substantiated evidence of a history of domestic violence, there should be a presumption against having a firearms certificate or a shotgun licence unless there are grounds for exemption.

We raised this issue because of evidence presented to the IPCC, and then set out in its report, on the appalling and tragic death of Mrs McGoldrick by Michael Atherton. It was quite clear that one of the reasons that Atherton was able to hold a legal firearm was because of flaws in the decision-making process in that, as the IPCC put it, the fears of an appeal were placed above the evidence of domestic abuse. Given all the problems such as his drinking and his violence, the report also said that his certificates were reviewed and a final warning letter was sent that,

“advised him that any further reports indicating any form of irresponsible or irrational or uncontrollable behaviour would result in the immediate revocation of his certificates”.

They were not taken away then because of the fear about his ability to appeal and now we are discussing appeals again today.

--- Later in debate ---

[Baroness Smith of Basildon]

That is very helpful. Can the Minister assure me that the guidance refers to community resolution, or does it refer just to it not having to be a conviction or caution?

[Lord Taylor of Holbeach]

I cannot categorically say that, but the advice I have is that community resolution would be included. Of course, I am prepared to write to the noble Baroness; it is difficult when we are at the end of a session like this to give proper advice to her.

Each case must be assessed on its merits. I have always said that it is important that police discretion should lie at the bottom of these issues. Evidence of domestic violence will generally indicate that a person should not be permitted to possess a firearm. I say here on the record that that is the Government’s position. We have provided guidance on the updated provisions in a Home Office circular. Authorised professional practice on firearms licensing has been brought in by the College of Policing to complement the Home Office guidance and to ensure consistency and high standards across police firearms licensing departments. Her Majesty’s Inspectorate of Constabulary will also conduct an inspection of firearms licensing departments in early 2015.

I have before me details of some cases which I do not think will necessarily add to the debate this evening, but if I can write to the noble Baroness, I will do so. I could include, for example, the details of the Atherton case and show how that fits into the context of these orders. As we know, domestic violence is already covered by a whole range of criminal offences. The question that I think lies at the heart of the noble Baroness’s challenge is whether there should be specific mention in law of domestic violence. We need to think very carefully about that because the graduation between violence and domestic violence is often a difficult one. The established law provides for the police to prosecute in domestic violence cases.

--- Later in debate ---

[Baroness Smith of Basildon]

I do not wish to detain the Committee and I am particularly grateful for the Minister’s offer to write to me. I know it is difficult; I said to him earlier that I wanted to raise the issue and I am grateful he has allowed me to do so. From what he said there does not seem to be a mile between us on this, but the difference is that we are suggesting that a conviction for domestic violence should lead to a presumption against being able to obtain a weapon. He says that will be covered in guidance, but the IPCC was quite clear that the discretion the police had made them very nervous about rejecting a licence, even in the case of Michael Atherton, because the appeals process can be challenging and is very expensive. I will not pursue it today, but if, when he writes to me, he can look at whether the guidance that now exists would address the failures in the Atherton case, that would be very helpful. I would be grateful if he could do that.

[Lord Taylor of Holbeach]

I thank the noble Baroness for that. It is important to understand that the order we are considering is about an appeal to a court—the Crown Court in the case of England or the Sheriff Court in the case of Scotland. It is important not to conflate that with the police’s view of whether they should grant a licence for another situation where there is suspicion of domestic violence. I understand that the noble Baroness wished to raise it, but it is a slightly different issue. It is important not to conflate the purpose of this order with the broader question of how we tackle domestic violence. I beg to move that the order be considered.

EU: Justice and Home Affairs (EUC Report)

Baroness Smith of Basildon Excerpts

Tuesday 22nd July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I once again thank the noble Lord, Lord Hannay, and his committee and its sub-committees—as well as the noble Lord, Lord Judd, who has served on them—for the work that they have done in providing this report. We have another quite remarkable report in front of us. Having been to seminars that the committee has undertaken, I have found its work to be extremely helpful and useful in informing our debate and my own knowledge. I think back to the number of debates that we have had around these issues with the committee’s reports, specifically on the Government’s opt-out and opt-back-in on justice and home affairs measures, and they do a great service to your Lordships’ House. We have had some of the most informed debates that I have taken part in here.

Not only is the range of issues covered by the justice and home affairs brief extraordinarily wide but the seriousness of them and their impact on the public are enormous. I know that it is very popular with some parts of the party opposite, although none of them is in their place today—and UKIP is rarely seen in your Lordships’ House for debates on these issues—just to think, “National good, European bad”. The noble Lord, Lord Hannay, I thought somewhat tongue-in-cheek, referred to his optimism that the noble Lord, Lord Pearson, would at some point pay tribute to the committee’s contribution to the debates. He may well have to wait a very long time, because the noble Lord, Lord Pearson, despite his strong views on European issues, is rarely seen in your Lordships’ House to discuss them, but I am happy to pay such a tribute to the committee.

The issues that we are debating today reach into personal safety and security and national security, and have an enormously positive impact. That is not to say—the noble Lord, Lord Judd, made the same point—that there is not room for improvement or that we do not seek changes, but it is essential to public and national security that we have international co-operation on these most crucial issues. Specifically referring to,

“asylum, immigration, border controls, judicial cooperation in civil and criminal justice matters, and police cooperation”,

the report states:

“These matters affect the day-to-day lives of European citizens and are of considerable importance”.

It also makes clear, in paragraph 4, that:

“The whole field is one of shared competence—that is to say, one where the Member States retain exclusive powers on some matters, such as counter-terrorism, but where the Treaty provides for the European Union to take legislative decisions on a limited number of issues”.

My next point, which was made eloquently—more eloquently than I shall be able to make it—by the noble Lord, Lord Judd, is about a fact that we have discussed before: crime does not stop at Calais. We have heard numerous examples in previous debates in your Lordships’ House of cases where co-operation has been essential to bring criminals back to the UK to face justice, and cases where only by Europe-wide international co-operation can a complete picture be built up and effective evidence obtained of criminal activities.

The Minister and I have debated the Serious Crime Bill at some length over the past few weeks, and I know that he, too, is aware of how important it is that we do not try to tackle serious organised crime in glorious isolation in this country but work with other countries to tackle it. Indeed, it is a matter for some regret that normally when we talk about co-operation on such matters, the debate tends to centre around terrorism and national security. Again, it was the noble Lord, Lord Judd, who made the point that we do a disservice to the public by not being very clear about the benefits to the public of such Europe-wide co-operation. I am talking about human trafficking for slavery and prostitution, drug crime, and money-laundering, in which criminals are trying to hide the ill-gotten proceeds of their activities.

The report helpfully starts with a timescale and a narrative of the sequence of treaties, with an explanation of the issues and priorities. It also deals honestly with concerns about the effective implementation of legislation. Following on from the Stockholm programme, a decision needs to be taken on how to proceed. We also need to discuss and define strategic guidelines for legislative and operational planning in the area of freedom, security and justice. The committee addresses the question of how this should be handled.

The noble Lord, Lord Hannay, referred to the subtitle of the report, Steady as she goes. It seems to me that that very phrase oozes responsibility; it inspires confidence. I have a picture of the noble Lord himself at the helm of a trusty seaworthy vessel: “Steady as she goes”. More seriously, the subtitle indicates the style and tone of the report and its recommendations. The noble Lord joked a little bit about it, but I think it is a very apt and helpful subtitle.

I shall pick up a couple of issues. One that leaps out at me is that of cybercrime. We have debated it in your Lordships’ House recently. Indeed, we are currently dealing with it in the context of the Serious Crime Bill. As noble Lords are aware, I think that the Government’s proposals on cybercrime should have been bolder. When we return to the subject on Report there may be an opportunity to see whether we have got that aspect right and whether more can be done. What strikes me about the whole area of cybercrime and cybersecurity is how fast technology moves, and how quickly legislation—and also our knowledge and understanding of the issues—becomes out of date. I refer back to the debates we had last week on the fast-track legislation on data retention. We were then debating a directive passed in 2009 that has been struck down by the European Court. We also debated the Regulation of Investigatory Powers Act 2000, which deals with intercept capabilities. That legislation is now out of date. It was clear in our debates on it how urgent and important it is that we do not just keep trying to make small changes and “sticking plaster” amendments to it, but have a proper, detailed, thorough review, and try to understand not just the issues we face now but how we might not exactly future-proof the legislation but at least make it easier to amend in order to deal with future developments in technology.

When we are looking at crime and threats in the cyber world, it is not just about Governments. In an increasingly global and technological world, the ability for cybercrime to damage companies and individuals as well as nations—damaging companies can have a huge impact on national infrastructure as well—is a growing threat. The use of technology has now intruded into some of the most heinous crimes. We have heard reports of them in the press involving child sex abuse, and there are new crimes that were not even invented or thought of 10 or 20 years ago, such as cyberstalking and revenge porn. Technology is available to enable new ways of committing offences and crimes against the individual.

The Stockholm programme recognised the challenges, and the European Cybercrime Centre was set up within Interpol in January 2013. There are issues about some of the work that it was doing, but the report highlights comments made at the Europol meeting that I found extremely useful and interesting.

In our debates last week on data retention, very little mention was made of the role of, and information held by, the private sector. Not only does the private sector hold enormous amounts of information about citizens but the advice from everyone in the industry and the recommendation of the report was that far greater emphasis must be placed on closer and more productive co-operation between the private and public sectors. There are common interests. There is a necessity for sharing expertise and good practice. A common theme throughout the report is its emphasis on consolidation and implementation. Specifically when we are talking about achieving that balance, co-operation between private and public sectors is important.

I was slightly disappointed by the Government’s response. If the noble Lord can clarify that, that would be useful. When I read the Government’s response to the committee’s recommendations, I expected to see strong agreement on the need for private and public co-operation on cybercrime. However, the Government’s response seemed qualified. I hope that that is just a misunderstanding on my part, but the Government’s response does not just say, “Yes, we totally agree. This is something we have to do. We want to co-operate. We want to ensure that we find mechanisms and support for public and private co-operation”. It starts by saying:

“As the Committee is aware, the Government’s policy objectives are”,

and then gives a list of policy objectives that do not include cybercrime. Only in the second paragraph does it come on to say, “Yes, we think that that is also an issue”. I would have liked to have seen something stronger to give greater confidence. Will the Minister place on record an absolute commitment from the Government on their determination to tackle cybercrime and ensure that essential private-public co-operation?

Another point to draw attention to in the report relates to serious and organised crime. I am interested to hear the Minister’s comments on that part of the report. It is not a recommendation, but the report draws attention to the point raised by Sir Hugh Orde and Rob Wainwright of Europol that:

“Further action to fight against drugs and radicalisation should also be priorities”.

They were not listed in the Government’s priorities. I am sure that the noble Lord can confirm that they are also a government priority. Rob Wainwright also said that,

“we should be arguing for a much more effective integrated response to organised crime within the EU”.

I hope that the debate that your Lordships’ House and the other place have had on the Government’s proposals to opt out of EU criminal justice matters and then seek to opt back in have not been damaging to our relations with Europe. We take that co-operation seriously.

I welcome the committee’s recommendations in “Chapter 3: Strategic guidelines for the Next Programme”, which include a recognition and acknowledgement that the priorities are implementation of existing agreements and consolidation. That does not mean that nothing new can be considered, but it means that a case must be made. I was certainly interested in the comments that any future programme should be more succinct, targeted and strategic—clearly, we do not want to fall into the trap of being vague or woolly—and have flexibility so that it can respond to unforeseen developments and trends. The noble Lord’s comments on that would be helpful.

Finally, the Government’s comments on passenger name recognition were interesting. The noble Lord, Lord Hannay, also referred to this. It is not the first time that this issue has been raised; it has been raised for a number of years and, indeed, there was a previous report from the EU Committee on this. The Minister says that “good progress” is being made. I hope so. We were very concerned that the e-Borders programme was cut so significantly in 2010. A lot of money—more than £150 million—has been written off by the Home Office. As serious as these matters are, I do not want to go into whose fault it is; what I need to know from the Minister is what is happening, when is it going to happen and whether he can give a progress report on this, because it is crucial if we are to tackle terrorism and serious and organised crime.

I am grateful to the noble Lord, Lord Hannay, and to my noble friend Lord Judd, who is also a member of the committee, for the work they do, and I hope that the Minister will address some of my questions.

Police Reform

Baroness Smith of Basildon Excerpts

Tuesday 22nd July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement. Most of us at some point in our lives have contact with the police: as witnesses—not as victims, we hope—reporting a crime; and in their community role, which at its best is excellent and at its worst is minimal. At their best the British police are rightly held in national and international high regard. They are praised by communities and they encourage and justify public confidence.

However, we have also seen evidence of policing going wrong, when its integrity cannot be relied on and public confidence is not justified. Issues such as the Hillsborough disaster and the investigation into Stephen Lawrence’s murder—and the appalling police actions following those shocking events—make it clear that a new framework is needed. The IPCC has too often done too little too late.

From talking to police officers, it is clear that they themselves feel the criticism of their profession more acutely than anyone else, because all the professionalism and integrity on which they pride themselves is undermined by the actions of a minority. We have already initiated a review of ensuring stronger actions on standards in policing. The noble Lord, Lord Stevens, led the independent commission that made a number of recommendations: a new stronger police standards authority, replacing the IPCC and HMIC with the power to initiate investigations; chartered registration for all police; the ability to strike officers from the register; and high professional and ethical standards for all officers.

I had hoped that we would have seen some of those issues incorporated in today’s Statement and an indication that some action is taking place. Instead we are going to have a review of the police disciplinary system and a public consultation on disciplinary hearings; as well as the existing Ellison review we are going to have another consultation on whistleblowing; we have got a review on police leadership; and we have a review on the police complaints system, including a review of the IPCC and the role of the police and crime commissioners. Just to confirm in case I have got it wrong, I count that as three reviews and four consultations. I am not necessarily against these reviews in areas in which we want to see progress, but so many reviews and consultations are a poor excuse for little or delayed action. How many reviews do the Government need to tell them that the IPCC is not working and that a piecemeal, sticking-plaster approach to reform is not what is needed?

The Statement begs far more questions than it gives answers. We shall come to some of them today but I hope that at some point we can have a longer debate on this issue. I am sorry that I find the Statement disappointing. It does not give me confidence that the Government will tackle the failures in the system with any sense of urgency or understand the scale of reform that is needed. So many reviews seem to indicate that the plan is to kick reform into the long grass well beyond the next election. The public and the police deserve better.

Yesterday in the Moses Room we debated the Government’s proposals relating to the by-election following the tragic and untimely death of Bob Jones, the police and crime commissioner in the West Midlands. Despite some worthy candidates and officeholders, there is little interest in and support for the role of the PCCs, with humiliating turnouts—just 14% across the country—in the 2012 elections. The cost of those elections, and the by-election in August, would have paid for hundreds of police officers at a time when every police force is facing swingeing cuts. One has to ask whether this is value for money.

I am sure the noble Lord has spoken to police officers, as I have. They have told me that the thin blue line is getting thinner and thinner. They feel they are unable to do their job as they want to and should be able to. The reforms that we and they expect seem no nearer with so many reviews and consultations. Those delays hit their morale, especially when they see convictions falling.

For example, in my home county of Essex, the investigation into the Colchester murders is drawing officers away from other parts of the country. They are having to leave the policing and investigations in their areas to undertake mutual assistance in Essex to ensure that they can effectively investigate these dreadful murders and police the area in Colchester. I have been told that this has meant that some officers have been on permanent 12-hour shifts for three weeks. That has taken its toll.

I do not know whether the Minister has seen the sickness figures for Essex but, in 2009-10, Essex Police lost 27,654 days to sickness. In the last year to April 2014, with fewer officers in Essex Police, that has risen to a staggering 41,251 days. Is the Minister as shocked and as worried as I am that the sickness levels in the Essex Police—and I have no reason to expect that Essex is different to anywhere else—have risen so dramatically since this Government have been in office?

We are right to expect the highest standards from the police, but does the Minister agree that the police also have a right to expect the highest standards from the Government in tackling police reform issues more quickly and in making effective use of resources?

Police and Crime Commissioner Elections (Amendment) (No. 2) Order 2014

Baroness Smith of Basildon Excerpts

Monday 21st July 2014 Grand Committee

[Lord Imbert (CB)]

My Lords, I thank the noble Lord, Lord Taylor of Holbeach, for putting some flesh on the bones of this proposal. None the less, I would address the cost of this.

As we know, at the time of the original elections, a YouGov poll showed that 65% of those polled did not want the system; 15% did and 20% did not know. None the less, the Government decided to go ahead with it and were a laughing stock when the election took place, when in some polling stations fewer than 10 people attended. I was told in the Chamber that the election cost £50 million.

Now, accepting that the whole system has cost £100 million to date, and if we pursue it until the regular time of the next elections we must accept that it will be another £100 million or so, is it right that this by-election money—another £4 million at the very least—should come out of the public purse as well? I know it is not in the Act, but when the Bill was passing through your Lordships’ House, like others I thought that if something happened to the police and crime commissioner, he or she would hand over to their deputy.

Did the Minister see the television production, “Meet the Police Commissioner”? If not, will he do so? It should be compulsory viewing for the whole Cabinet. It has not become a Whitehall farce but it is being talked about as a Westminster farce. It has become something of a laughing stock. When the police and crime commissioner in Kent allowed the television cameras in, she was asked by the interviewer about her daily workload. He asked, “What is the first thing you do when you arrive in the morning?”, and she said, “My nails”. She has paid herself £85,000. She has a staff of 16. When they get depressed and bored, she brings her dogs into the office to cheer them up. This really is an awful farce. If the Government do not do something to stop this, they will be the laughing stock.

If the by-election costs more than £4 million, could that come out of the money that has been set aside already for the running of the PCC system and not out of the taxpayer’s pocket, although inevitably at the end of the day it comes out of the taxpayer’s pocket anyway? I ask the Minister: how many more—and I mean more—accident and emergency departments are going to be closed in order to keep paying for it? We have already lost dozens of them. I know that the money has to come from somewhere. Would it not be better to spend that money on saving lives rather than saving red faces in the Home Office and the Government?

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for his—albeit brief—explanation of the order. The comments made by the noble Lord, Lord Imbert, are very relevant to this debate.

I thank the Minister for his comments about Bob Jones. He died at the age of 59 very suddenly and it has been a dreadful shock to his family, friends and colleagues in the Labour Party. He was well loved and very highly regarded. His commitment to the post he held, despite the flaws in the legislation, was not new. He had been on the police committee previously and a local councillor for many years, and he is a great loss to the community. His drive always was to engage with the community and with young people so he leaves a huge gap in the lives of his family, friends and the community he served.

Given all the circumstances and the sense of loss and shock felt, it is all the more disappointing that a by-election has been called in the way it has. The legislation provides for just two electors to be able to call a by-election. I understand that one of those electors is a former candidate for the post. They have called a by-election, with the costs and issues that have been raised by the noble Lord, Lord Imbert, which has to be held 35 days later. That leaves us in the position of having an election on 21 August. I would have thought that there would be some kind of decency—that someone should be buried or at least have a memorial service before someone calls a by-election in those circumstances.

Having mentioned the tremendous loss of a friend and colleague that we feel, I am pleased that my old friend and colleague from the other place, David Jamieson, has been selected to stand as our candidate. I know personally of the commitment and integrity he will bring to the election from my work with him in the other place.

The noble Lord, Lord Imbert, raises some valid questions. When the Police Reform and Social Responsibility Bill started its passage through your Lordships’ House we opposed the position of police and crime commissioners. I also note the Kent police commissioner’s TV programme; “sad amusement” might be one way of describing it. I do not think that is typical of police and crime commissioners; however flawed the process and posts are, most of those elected do the best that they can in the job. The Minister will recall that Tony Lloyd, a police and crime commissioner from Manchester, was helpful to us during the passage of the anti-social behaviour Act when he suggested proposals to deal with child sex grooming and how to close down premises more quickly. He was using his role in a positive way.

That fact is that the legislation was rushed in. It became law only 10 weeks before the first elections. That illustrates that more time should have been taken to think it through, perhaps with some heed taken to our objections. Having said that, we fought those elections and put forward the best people because the posts were there. Those posts remain. We are not opposing the order today, but there are some questions on which we seek clarity. Some measures in the order seem to be there to prevent the Government facing further humiliation over the disastrously low turnouts we saw in the elections and, presumably, the by-election. Both the Electoral Reform Society and the Electoral Commission have raised concerns about the level of turnout and public engagement. The Electoral Commission feared that there would be a turnout of just 18.5% when these elections were held in 2012. What a disaster it would be if we had elections in which only 18.5% of people voted. In fact, it was grossly overoptimistic. Nationally, 14.7% took part in the elections. In the West Midlands, where we now face a by-election, only 12% took part. It was an almost perfect storm.

We had public apathy at best, public opposition at worst and a situation, which we raised again and again with Ministers, where the campaign was digital by default. People would find out information about their candidate by going online, because they would obviously be very interested, finding the details of all their candidates and rushing out to the polling stations to vote for them. Well, that was wrong, was it not? Even if it had been right and those who were interested had looked online, 7 million people on the electoral roll have no access at all to computers and to the information. That appallingly low turnout was therefore inevitable. Can the Minister say anything about the kind of turnout that he would expect to see in this by-election, particularly given its date of 21 August?

The Government are recognising the problem in that the order provides for what it calls a “trial”—I should have thought this was evidence that people should get certain information during election campaigns—of the mailing of candidate election booklets. The returning officer should be able to seek a reasonable sum from the candidates towards the printing of an election booklet. This is the kind of thing that we were saying when legislation went through before but which the Government rejected at the time. I am pleased to say that we have seen more interest in telling people that an election is on than we did then.

In the Explanatory Notes, as the Minister says, there is a partial response to the concerns expressed by the Electoral Commission. I mentioned the lack of awareness of the candidates at elections. Then it was an unfamiliar time of the year for elections: November. No other elections were being held and we rarely have elections in November, just as we rarely have elections in August. There was a lack of information, not just on the candidates. The point still remains about what the elections were for, what they were about, why they should stand, and what the PCCs could do. That has not been made up since those elections took place. When I talk to people in my local area, very few of them know who the PCC is, know what they can do, or have any awareness of their role at all. Therefore all those issues are of extreme concern.

The other issue that the noble Lord did not mention that I sought to address was that at the last elections there was a helpline for those who wanted information, albeit it worked for only 23 days before the election took place. Are there any plans for any kind of helpline this time? Also, there was no provision in the elections in 2012 for people with sight difficulties, or materials in any other language. Can the Minister tell me what has been done to address those issues?

--- Later in debate ---

[Lord Taylor of Holbeach]

I thank the noble Lord, Lord Imbert, for his contribution and the noble Baroness, Lady Smith, for her comments. The choice of the date of the by-election is not the Government’s; it does not lie with the Government.

[Baroness Smith of Basildon]

I said at the very beginning of my comments that it had been called by two electors, one of whom I understand is now a member of UKIP. Although he was an independent candidate at the time, I wonder whether he will pop up as a candidate for another party in these elections.

[Lord Taylor of Holbeach]

I am grateful to the noble Baroness for making that clear. Yes, she did say that the by-election was called by two people. All I am saying is that, in law, the Government have no locus in fixing the date of a by-election. The by-election is unwelcome both for political reasons, in the sense that having a by-election in August would not be the choice of any of us who really believe in democracy, and because of the circumstances which led to it; namely, the death of Bob Jones, who was a highly respected figure. Although, rather like the noble Lord, Lord Imbert, he was not entirely in favour of police and crime commissioners, he realised that it was an important job and he did it well.

It is important to address the question of money, because there are two sides to it. If you are going to hold an election, you need to spend the amount of money that it costs to have the clerks and the polling stations open and you need to meet the bare costs of an election. In this case, we estimate the cost to be £3 million. What we are discussing today is the cost of the leaflet and its provision. I understand, as noble Lords have said, that these are difficult times, and the Government are mindful of the need to keep public expenditure under control. However, the balance of advantage in this case is for there to be an informed electorate and the leaflet provides an opportunity for that to be the case. We consider that the leaflet will cost somewhere between £700,000 and £1 million, although we cannot be certain. We know that in certain forces the cost would have been as low as £300,000, but in the largest forces, of which the West Midlands is one, the cost is estimated to be £1 million. The Explanatory Memorandum makes that clear. I hope that there is no suggestion that this is not good value for money, because democracy never comes cheap. Those of us who have been involved in democratic politics all our lives know how important it is that people are engaged in democratic processes.

I should also emphasise that this money is not coming out of police budgets; it is coming out of direct Home Office budgets. Of course, it is funded by the taxpayer, as all government money is, but it is not at the expense of proper policing or the role that we would expect of the police.

I have to say that I did not see the “Panorama” programme; I read things about it but I have not seen it. As I think the noble Lord will understand, I am usually quite busy, not least in the House, and I do not see television during the week at all, so I missed it.

You have only to look at some of the successes that PCCs have brought. Consider the role that Bob Jones played in the West Midlands. The noble Baroness made reference to her former colleague in the Labour Government in the House of Commons, Tony Lloyd, and his role in Manchester. I can talk of Nick Alston in Essex, Adam Simmonds in Northamptonshire or Martin Surl in Gloucestershire. There are so many examples of individuals who have really made something of the job and brought something to effective policing. As someone who, I know, has spent his life extolling the importance of effective policing, I hope that the noble Lord, Lord Imbert, will accept that.

The noble Baroness asked particular questions. She wanted to know about helpline accessibility. We intend to provide the booklets in alternative formats, such as Braille, and provide a helpline for the election. Of course disabled access will be available, because it is required by law at all polling stations. It is unfortunate: 21 August is not the time to hold a by-election. However, the law is the law. We have to have it on 21 August and deal with it, so not all the polling stations will be the normal ones. That is all the more reason why it is important that the electorate is informed in the proper way.

There has been a lot of ribbing about turnout. I shall not estimate the turnout. All I can say is that I am sure that all noble Lords present would want a better turnout at this by-election than the 12%-odd turnout in the West Midlands when we had the first PCC elections. Those elections were held, as the noble Baroness, Lady Smith, said, at a time of year when we do not normally hold elections. Next time round, as she well knows, they will be in May, alongside local government elections. I believe that the opportunity of this by-election—unsought as it is—and this order will inform us about public response to the opportunity to elect their police and crime commissioners and seek to make those elections as effective as possible.

If it is necessary to bring legislation forward in future—secondary legislation, most likely—of course the Government will not hesitate to do that. I hope that we will have the general support of the Opposition in bringing it forward, because I am a little confused as to where they stand on how they are to provide for people to vote for police and crime commissioners in future if they are not fully in favour of the system. It will be interesting over the next few months, when the position will no doubt be clarified.

Data Retention and Investigatory Powers Bill

Baroness Smith of Basildon Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I rise in defence of the Minister because the Intelligence and Security Committee discussed this point with the director of GCHQ on Tuesday morning in the short time available. There have been developments since 2012 that have affected the attitude of the providers—for example, the activities of Mr Snowden. The committee was satisfied that there is a serious risk of loss of visibility of people who ought to be under observation and that the Government’s arguments that this is an urgent matter were justified.

[Baroness Smith of Basildon (Lab)]

My Lords, I rise briefly because I think that perhaps my noble friend Lord Davies has been misunderstood. I do not think that he doubts for one instant the emergency situation that necessitates this legislation. His argument is that the Government could have acted sooner. I will not enter into a debate as we had a long debate yesterday, but it remains our contention that the Government could have acted sooner on this issue. But there is a time imperative now on this legislation.

[Lord Taylor of Holbeach]

I will not argue with the noble Baroness if she wants to make that judgment of things. The Government have to make decisions for themselves on these issues and they do so in the knowledge of the facts, as the noble Lord, Lord Butler, explained to the House. The Government make judgments at the time as to what is necessary, and in this case they have made the right judgment.

We have had a side-show. I now turn to the substance of the amendment in the name of the noble and learned Lord, Lord Hope. I share his wish to ensure that the new regime for data retention that we are putting in place through the Bill is fully compatible with the European Court of Justice, and that is what we are doing. As I explained at Second Reading, while the EU data retention directive was struck down by the European Court of Justice, the ECJ judgment was about the EU data retention directive. The court did not rule on any member state’s legislation and did not take into account the many safeguards which I explained we have in our domestic regime. Many of the ECJ’s concerns are already addressed by the UK’s domestic legislation. Crucially, the judgment explicitly recognised the importance of data retention in preventing and detecting crime.

Nevertheless, although the UK’s existing data retention regime is already a very strong one, with stringent safeguards and oversight, in order to respond to elements of the judgment, we are extending the existing safeguards in a number of ways. Details of those safeguards are contained in our factsheet on that issue, which is available from the Printed Paper Office. However, I will elaborate on them here.

The regulations made under the Bill will replace the 2009 data retention regulations. They maintain the status quo, while also adding additional safeguards in response to the ECJ judgment. In particular, the regulations set out what must be specified in a data retention notice and factors to be taken into account before giving a notice; place a requirement on the Secretary of State to keep such notices under review; set out the security requirements which apply to data retained under a notice; require providers permanently to delete data when they are no longer under an obligation to retain them; require providers to ensure that data are not disclosed except in accordance with the access procedures in RIPA or a court order; and provide for the Information Commissioner to audit compliance with the requirements of the regulations. A provisional draft of those regulations is also available from the Printed Paper Office.

I am satisfied that with those extra safeguards we are on even stronger ground in asserting that the UK’s data retention regime fully meets the requirements laid down by the ECJ. That judgment does not require us to adopt every single bit of wording in the judgment. On the specific details of this amendment, the test currently in the Bill allows the Home Secretary to consider not just whether it is necessary to require a communication service provider to retain data, but also whether the interference that retention involves is proportionate to that legitimate aim. We believe that that is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data. The test of necessity and proportionality is a well established legal principle, as the noble and learned Lord well knows, which is already a notable feature of elements of the existing RIPA regime.

I am, as ever, grateful to the noble and learned Lord for sharing his considerable experience and expertise with the House, but I hope he is satisfied that the clause simply seeks to build on those long-standing principles, providing an extended safeguard and appropriately reassuring the public. We have a strong test here, which is fully in the spirit of the court’s judgment. Accordingly, I do not believe that the amendment is necessary, and I invite the noble and learned Lord to withdraw it.

--- Later in debate ---

[Lord Wills (Lab)]

My Lords, I came with an open mind to this debate and I am afraid I have to say to the Minister, for whom I have great respect, that I am now minded to support this amendment. The reason for that, quite simply, is that the overriding priority for all of us must be the reassurance of the public, whose security lies at the heart of this whole debate, and the public are suspicious of the motives of those in power, as my noble friend Lady Kennedy has just outlined. The later the date, the more suspicious they become, so there have to be compelling reasons for this longer period. We are not talking about doing this in three weeks; we are talking about 18 months and I have not heard anything by way of a month-by-month account of why this extra time is needed. So unless the Minister can say something to provide detailed, compelling arguments for this extra time being necessary, I am minded to support the amendment.

[Baroness Smith of Basildon]

My Lords, this has been a long and interesting debate. I do not know if my noble friend has had the opportunity to hear the whole debate today, or the debate we had yesterday, but three clear issues came out of yesterday’s debate.

One was the widespread acceptance in your Lordships’ House that there was a gap that had to be plugged as a matter of urgency. There was also deep dissatisfaction—and I think some anger—with the Government’s use of the fast-track procedure. It is unsatisfactory and I think that view came across very clearly in the debate.

There is also deep dissatisfaction with the current situation, whereby we seem to amend our laws on this issue by a sticking-plaster process. The problem comes up and we deal with it now. It was very clear from yesterday’s debate—this was the point made by the noble and learned Lord, Lord Hope—that we must keep pace with the technology, the changes and the information presented to us. We have failed to do so. RIPA, which was passed in 2000, is now hopelessly out of date. We recognise that that needs urgent consideration.

The amendment suggests that we shorten the period in which we may give further consideration to bringing new legislation. The amendment in the other place, which was tabled by my right honourable friend Yvette Cooper is now Clause 7 of the Bill. I am surprised that those who tabled this amendment did not seek to make changes to Clause 7 as well. Clause 7 is crucial in this whole debate and was central to our support for this legislation. Clause 7(3) says that the independent reviewer, a man whom this House has made clear, as it did yesterday, it holds in the highest regard and the deepest respect,

“must, so far as reasonably practicable, complete the review before 1 May 2015”.

The Minister can confirm this or otherwise, but I understand that, following that review, there would be a Joint Committee of both Houses, where Members of your Lordships’ House and the other place with, I hope, a broad range of opinions—I agree entirely with my noble friend Lady Kennedy—will examine the evidence presented by the independent reviewer.

We have two choices. We can start the work now—there should be some issues that we can look at now—but the substance that the independent reviewer will look at I would expect us to examine, take on board and introduce in legislation. Either this is just a sop and we ignore anything the independent reviewer says and get the legislation through earlier, or we take the views of the independent reviewer seriously and ensure that what he says is taken into deep consideration when we are looking at legislation.

One of the comments made was about public confidence and trust. The public have a right to wonder what we are doing when we pass fast-track legislation. We bring this out of the blue, we put it in context and we expect trust on legislation. That is a big ask. That is also why there has to be some public engagement on these issues, as was clear from yesterday and today’s debates, and this forms part of our demands with this legislation. Obviously, there are details of security information that cannot be given to the public, but the public are entitled to a lot more information that is available now and are entitled to know the context in which data are held. Like my noble friend Lord Rooker, I think that when it comes to the private company-held information, as well as public statutory information, the public have a right to know. We have only to click on the internet and look at something, and for days afterwards somebody knows what you have been looking at because it is there every time you go on to Google or look at something else again. We have a duty to engage the public in that. However, that duty will not be done tomorrow or next week. It will be done in the context of the report from the independent reviewer.

The noble Lord, Lord Carlile, made a very important point when he reminded us that the sunset clause will stop. This is not a sunset clause to reintroduce the same legislation. This is to bring in a completely new framework under which we operate on these issues. That is not something that we should take lightly. We can start working but we need the report of the independent reviewer as well.

As much as one looks at an amendment such as this and instinctively thinks we do not need so much time to deal with it, when one examines the issues there is a strong case for bringing in completely new legislation, which needs time to be done properly. The public cannot be reassured if we continue with sticking-plaster legislation and fast-track legislation, which is completely unsatisfactory.

[Lord Taylor of Holbeach]

My Lords, it has been very useful to have this debate. It is our last amendment in Committee and it sums up so much of what we are trying to achieve. I am very grateful to the noble Baroness, Lady Smith, for laying out so clearly the issues that are before the Committee today. It is clear that the Opposition, the Government and coalition partners have been talking about how best to deal with this issue. We have come to the conclusion that replacement legislation for RIPA needs to be properly considered and that we need to look at where we are. We need proper consideration of future legislation. We are also clear that, while we are passing this particular element today, it needs sunsetting—and it needs sunsetting absolutely when its time has expired. However, we would be reckless to try to set a date when we will then prevent the proper operation of the discussion that we all agree is necessary in Parliament, and with the public in the larger world, about this issue.

The Government do not take lightly the requirement for fast-track legislation, but we have taken this forward with the support of the Opposition, and we have included in it an absolute sunset clause, as is right and appropriate. This is so that Parliament can return to the issue after all the other issues have been discussed. Indeed, Parliament must return to it because this sunset clause is absolute and there is no room for its extension.

Noble Lords have queried the requirement for the speed of the legislation. I repeat that we have particular and urgent circumstances. Earlier, I repeated to the noble Lord, Lord Davies of Stamford, things that I had said at Second Reading. He is not in his place at the moment, but he will confirm that I made it clear that there were urgent considerations and that we were on a cliff edge, as the Prime Minister has said. However, the Government understand fully the wish of noble Lords, which has been expressed in almost all debates, to review this area. That is why it is so important that time is allowed for an independent review before the election, hence Clause 7 in the Bill and a Joint Committee review after the election. That is not kicking the can down the road; it is just making sure that when we return to this with legislation, we do so with legislation that has the support of Parliament and has been properly considered. At the same time, it also makes sure that, whoever wins the election, the Government presenting legislation can do so with the public having been fully engaged in the discussion on the issue.

This amendment would change the date when the Bill ceases to have effect and bring it forward to 31 December 2015. While this date is a year later than that proposed in the House of Commons, I do not believe it will give the sort of time that we need for the reasons expressed by the noble Baroness, Lady Smith. The debates that have taken place in this House have made that absolutely clear. While we have no option but to act swiftly now, festina lente is a sensible approach to finding the new solution for the future. The technological changes we are facing—someone pointed to the speech of the noble Baroness, Lady Lane-Fox, yesterday—and the balance between security and liberty, should be looked at with a view to the longer term. We will set up, as I have said, in the Bill a review of the investigatory powers and their regulation to be headed up by the current independent reviewer of terrorism legislation, David Anderson QC. He will report by 1 May 2015, just before the general election. I believe we should be discussing this sort of issue at that time. We need to be realistic. None of us knows who will form the Government after the election. We all have our own views; we sit on opposite sides of the House. However, decisions need be made in the light of information that should be available to Parliament as a whole.

Data Retention and Investigatory Powers Bill

Baroness Smith of Basildon Excerpts

Thursday 17th July 2014 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, I thank the officials who have supported me during the course of this Bill on behalf of all Members of the House. It has been a testing time for them but they have done it in an exemplary fashion.

[Baroness Smith of Basildon (Lab)]

My Lords, it has been a difficult process on this Bill and I thank the Minister for his customary courtesy in ensuring that we have had access to information and in being prepared to meet with Members across the House. I thank his officials, who have made themselves available to us beyond the call of duty. I also thank the officials of your Lordships’ House, who have had to work in double-quick time on the amendments that have been tabled and have all done so with courtesy and great kindness to Members.

Bill passed.

Child Abuse

Baroness Smith of Basildon Excerpts

Thursday 17th July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for repeating the Answer to the Urgent Question, although he may be aware that his Answer was somewhat different from the one that was circulated. However, I am glad he referred to this issue, because yesterday’s report that the National Crime Agency has arrested 660 people for online child abuse and sexual assaults is both encouraging and depressing. It is encouraging because it shows that the police give this a very high priority, but it is deeply depressing that there are now reports that thousands more people suspected of accessing child abuse images are known to the police but are not being arrested.

The paramount concern, which I am sure is shared across the House, is to protect children and prevent their becoming victims of abuse. How many of those identified would be barred from working with children? With a 75% drop since 2010 in the number of offenders and people barred from working with children, will the Minister accept that a review of the current child protection system, including the entire vetting and barring system, should be included as part of the overarching inquiry into child abuse and a report presented to your Lordships’ House as a matter of urgency?

Data Retention and Investigatory Powers Bill

Baroness Smith of Basildon Excerpts

Wednesday 16th July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, we are grateful to the Minister for his explanation of the content of the Bill before us today. We were clear in responding to the Statement last Thursday that, while recognising the immediate need to retain existing evidence relating to investigations into serious and organised crime and national security, the Government’s handling of this issue raises serious questions and concerns.

Those concerns remain, and I will come back to them, but, at the outset, I welcome the Government’s acceptance of the two amendments that we tabled yesterday in the other place, which gave statutory authority to both a six-month review of this legislation and a wider review of RIPA, the Regulation of Investigatory Powers Act—the legislation that provides for and underpins the whole basis of intercept evidence. That means a much more detailed and fuller consideration not just of the legislation but also of the context, application, implementation, impact and effects—and, importantly, the oversight—of the wider issues involved in retaining data and of intercept evidence. As the Minister said, that will be undertaken by the independent terrorism legislation reviewer, David Anderson, and we consider that such a comprehensive review is essential.

These are highly sensitive and crucial issues. Fast-tracking this legislation in the week before the House of Commons rises and just two weeks before your Lordships’ House goes into recess, when it could have been brought forward earlier does not inspire the confidence to which we and the public are entitled.

Clauses 1 and 2 provide for the retention of communications data—which is very similar to the powers provided for in the data retention directive and then in the 2009 order that gave effect to it. The directive allowed for data to be retained for up to 24 months, although the 2009 regulations provided a limit of 12 months, as the then Labour Government considered that to be adequate and proportionate. As the Minister explained, legal action then followed and, as a result, the directive was struck out in April this year. Although the UK regulations remain, they could be legally challenged.

We accept the necessity of retaining that data as an essential tool in investigating and providing evidence of some of the most serious and organised criminal activity. We also concur with the judgment of the Constitution Committee in its report today that the ECJ legal judgment means that the 2009 regulations lack legal authority and that new legislation is required urgently to replace them.

However, we are told that following the ECJ judgment, an assessment had to be undertaken as to the legal framework and what action was required by the Government. Why “following”? I appreciate that the judgment was detailed, but the basic, fundamental issue was clear. Given how important it is, we find it absolutely incredible that, prior to the court decision, the Government appear not to have undertaken the necessary work to ensure that a new legislative framework could have been put in place with the appropriate scrutiny of both Houses of Parliament in good time.

In its report today, the Constitution Committee reinforces this point in its comment at paragraph 6, when it says:

“The contrast between the time taken by the Government to consider their response and the time given to Parliament to scrutinise the bill is a matter of concern, not least because of suspicions that are naturally aroused when legislation is fast-tracked”.

It is not the first time. Albeit on a different issue, in July 2012 when the courts struck out the statement of Immigration Rules, it appeared that the Government had not taken the necessary advanced preparation and no action was taken until after the court decision; it was rushed in in the few weeks before recess. This is no way to legislate. Since the first Bill we have been dealing with in this new Session of Parliament was the Serious Crime Bill, I have to press the Minister as to why this legislation was not brought in alongside that Bill to ensure greater scrutiny. We may still have had to accept some truncated intervals but it would have been a significant improvement on what we have now and would have removed some of the distrust and suspicion that fast-tracking has brought.

In its 2009 report Fast-track Legislation: Constitutional Implications and Safeguards, the Constitution Committee set out certain principles that should be addressed when Governments seek to fast-track legislation. Looking at this, it seems that many of those principles have now been met, either in the legislation or by the Government’s acceptance of our amendments yesterday in the other place. Noble Lords will be aware that in the discussions we had with Ministers, we were insistent on a sunset clause. That has been agreed. The 2009 report also referred to post-legislative review; the Government’s acceptance of our amendments regarding the six-month review of the legislation and a statutory basis for the review of the Regulation of Investigatory Powers Act meets that criteria.

The Constitution Committee listed other principles then but there is one on which I seek a distinct and precise response from the Minister, and it is raised again by the Constitution Committee in its report today. Why has this had to be fast-track legislation? I have been clear, and the committee is clear in its report, that the issue is not the time imperative which we now face to ensure that investigations of serious crime can continue but why the Government failed to bring legislation forward before now. The Government have a duty to provide Parliament with a significantly better response than we have received to date.

As we have heard, Clauses 1 and 2 of the Bill, which is now somewhat affectionately known as DRIP, provide for the continuation of powers to retain communications data collected in the UK for a limited time. We are clear that these powers are needed. This information is used to investigate and prosecute some of the most serious crimes, and of course it can be used to prove an alibi of someone wrongly accused of such crimes. My understanding is that these data, held temporarily for up to a year, are used in something like 90% or 95% of all serious and organised crime investigations, counterterrorism investigations and online child abuse investigations.

For absolute clarity, it would be helpful if the Minister could confirm that nothing in those first two clauses on data retention allows for the content of communications to be retained, only information relating to the fact that a communication has taken place. Can he also confirm that nothing in these clauses in any way extends or enhances the existing data retention directives and that, as the Home Secretary said in her Statement, the number of public bodies able to access communications data will be reduced, as referred to in the judgment of the ECJ? Is he able to say anything more about that at this stage and when the order limiting use of these data is likely to be brought forward?

The Minister commented earlier on the Delegated Powers Committee’s report on this issue. It addressed that in paragraph 7 and suggested using the “made affirmative” procedure to ensure that the regulations are in force before the powers can be exercised. That is a helpful and welcome suggestion, as he acknowledged, because it addresses the illogicality of having fast-track primary legislation if the accompanying and essential secondary legislation which provides safeguards is not made available at the same time. I heard what the Minister said in response to that report in his opening comments. If I understood correctly, he agreed that that should take place but I was not totally clear whether he was agreeing to the procedure or saying that some other procedure would be found to ensure that secondary legislation would be in place when this Bill comes into force. It would be helpful to the House if he could explain that when he winds up.

Clauses 3 and 4 make explicit the territorial provisions in RIPA to put it beyond doubt that interception warrants can be issued on companies which provide services to the UK but are based outside the UK. They also clarify how such warrants can be issued. As I think noble Lords understand—I am sure that the Minister understands this from the meetings that he has had with me and others—this part of the Bill is more complex and illustrates how global the communications world has become. Increasingly our communications are global rather than local, but local communications can also be provided by companies that provide services within the UK while their headquarters may be outside the UK. The distinction between national and international data is extremely blurred in the light of modern technology. Will the Minister confirm that such information is already sought and provided in certain circumstances, and that these clauses ensure that the legal framework is explicit?

We have heard from the interventions from the noble Lord, Lord Phillips, and my noble friend Lord Knight about whether the extraterritorial claims go beyond current legislation. It would be helpful to have further clarification on this. My understanding, and perhaps the Minister can confirm this, is that it does not extend beyond the current practice and application of the law but reassures companies of the legal basis to comply with the legislation.

Lastly, I want to address the issue of safeguards and the wider review. The Government have to recognise that bringing forward these measures under the fast-track procedure means that it is essential that Parliament returns to these issues but that it does so in a completely different way. As important as these measures are, we should all recognise that this is temporary. There is a sunset clause to say that these provisions will expire at the end of 2016, when new legislation will have to be in place. Before then, a much wider review has to take place that must inform any such future legislation and oversight arrangements.

We believe that data communication information and intercept evidence are vital in tackling the most serious of crimes, and for national security. I think that all noble Lords recognise that we do not live in an ideal society where all citizens are guaranteed total and absolute privacy, and that modern technology requires legislation protecting security and liberty to be kept up to date and relevant. Equally importantly, we recognise that there must be safeguards to ensure that any collection of information must be proportionate and justified, and that measures should be used only for the purpose for which they are intended. There must be safeguards to protect the public interest and public privacy. The public have a right to confidence that the collection and retention of data meets these criteria. The establishment of a privacy and civil liberties board, as mentioned in the Home Secretary’s Statement, is welcome but it will have to be set up and operated in a way that inspires confidence in its title. We also support strengthening and enhancing the Intelligence and Security Committee.

Previously, the Government have resisted our calls for an independent review, so we welcome their acceptance of our amendments in the other place yesterday to ensure the statutory review of RIPA and the wider implications of the legislation. There has to be more than that, though; following that review, and before new legislation, there has to be a wider public debate. I said at the beginning that these are sensitive issues; they are also complex ones that strike at the heart of the issues that we care about most. We care about crime, national security and public safety, but we also care about the rights and privacy of individuals. It is not unreasonable for the public to demand both security and liberty. We have to get that balance right. We have to have public understanding of the issues and public consent, and fast-track emergency legislation does not give us that.

We support the Bill and are content that it maintains the existing capabilities, and we are content that the proposals do not extend the application of existing frameworks but provide a secure legal position and fill an immediate gap to ensure that vital evidence will not be lost. However, these issues, with all their complexities and sometimes seeming contradictions, are not short term. They will be with us for a long time and we need proper, sustainable policies that command support, not just temporarily but for the longer term. The real challenge has yet to be met.

For all the concerns about the nature of today’s debate and the use of fast-track legislation, we should use this debate as a starting point. It is an opportunity to welcome the broader, wider review; to strengthen oversight; to properly and effectively consider the balance between liberty and security, between privacy and public safety, in a world where technology is developing faster than at any other time in history; and to ensure as far as possible that this is not a private debate but one that, through honesty and clarity, provides confidence that we can get the balance right.

--- Later in debate ---

[Lord Taylor of Holbeach]

For a start, not only will there be a review of this piece of legislation on a six-monthly basis, something that has been agreed and now forms part of the Bill, but David Anderson, the independent reviewer—that is the very paragraph I was turning to, the noble Lord, Lord Soley, will be delighted to know—will lead a review into these issues. The Bill now provides a clear basis in law for that review. The noble Lord, Lord Blencathra, suggested that Mr Anderson look at his report as a starting point for addressing this sort of issue. That will be available before the election, and will help inform public debate during the election. The wider safeguards and assurances that sit around the Bill are also important. I am glad that noble Lords have taken account of those safeguards, which build on the extensive safeguards that already exist.

However, there are wider issues, and I will do my best to go through some of them at this stage. I am going to demand a lot of my officials, in the sense that I will ask them, to the extent that they are able, before Committee tomorrow morning, to draft a letter which can be circulated to all noble Lords who have participated —if I do not get time, because I am conscious of time.

In a very interesting speech, the noble Lord, Lord Knight, asked whether there was compliance with the European Convention on Human Rights. The Home Secretary and I have signed on the Bill a declaration that it is so. We have also made available the memorandum to the Joint Committee on Human Rights, which explains how our Bill satisfies the ECHR. I hope that that reassures the noble Lord.

The noble Lord, Lord Rosser, asked: what are our plans for the timing of regulations? I understand the interest in that. The draft regulations have been published and we have informed the House that the Government’s intention is to lay the regulations following Royal Assent, so that they can be approved by both Houses of Parliament prior to recess. They have, of course, already been published, as I said, and we are liaising with both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, ably chaired by my noble friend Lord Goodlad, to ensure that they can consider these matters as soon as possible. The JCSI will meet on Monday to consider the regulations, so that the Commons can debate them prior to recess.

The noble Lord, Lord Strasburger, asked why the measures were not part of the Queen’s Speech. When the gracious Speech was written, our response had not been finalised. The noble Baroness, Lady Smith, asked why it did not form part of the Serious Crime Bill, which she and I are seeing through this House and has finished in Committee. As she knows, we will not return to Report until October. The difficulty of the timetable for that Bill means that it will not be through all its stages before the new year, if we are lucky.

[Baroness Smith of Basildon]

My Lords, the Minister has given answers to a lot of the questions that have been raised, but I said, when I talked about introducing the provisions at the same time as the Serious Crime Bill, that although these provisions may have had to be taken more quickly than the rest of the Bill, it is still the view of most Members of your Lordships’ House that these provisions could have been brought in sooner.

[Lord Taylor of Holbeach]

My Lords, I do not think that the Government consider that that was a satisfactory way to deal with the problem.

The noble Lord, Lord Davies of Stamford, asked why the Intelligence and Security Committee did not have time to report on the Bill. I note the noble Lord’s concern on that, but I draw his attention to remarks in the Commons yesterday by the chairman of the committee, Sir Malcolm Rifkind. He said:

“The Intelligence and Security Committee has considered the Bill, and we have taken evidence from the intelligence agencies on its content. If we were concerned in any way that the Bill simply added to the powers available to the Government and that they were using a fast-track procedure to implement it, we would not be able to recommend its endorsement, but we are satisfied that that is not the case”.—[Official Report, Commons, 15/7/14; col. 725.]

Noble Lords should bear that in mind.

Communications Data and Interception

Baroness Smith of Basildon Excerpts

Thursday 10th July 2014 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the Minister for early notification of the Statement, and for providing a copy of it beforehand. Before I refer to the content of the Bill, I flag up our disappointment regarding the timetabling. We understand and appreciate the necessity of this legislation and the time imperative that now exists, as the noble Lord explained. But why is it being brought forward now as fast-track legislation? As he said in the Statement, the decision of the ECJ was taken in April. We accept that it takes some time to digest and analyse the implications of such decisions and to prepare legislation, but it would have been preferable to bring this legislation forward earlier.

Over the past weeks we have been discussing the Serious Crime Bill, and the noble Lord is aware that we support measures in the Bill but have tabled amendments that would strengthen and improve it where we feel that the provisions are okay but too weak. So why were these measures announced today not brought forward alongside that Bill, given that the fast-track Bill he has announced strikes right at the heart of serious and organised crime and counterterrorism?

The data of which this Bill will ensure temporary retention are used in 95% of serious and organised crime investigations, counterterrorism investigations and online child abuse investigations, so we do not doubt the necessity of their use. In considering our response to this fast-track legislation, we have focused on the principle that such crime and counterterrorism investigations must not be compromised. We have a duty to maintain the security of our citizens. We also recognise that this Bill does not go further than existing legislation, as the noble Lord outlined, but maintains existing capabilities.

We also have to ensure that individual privacy is protected. We therefore considered it crucial that there should be safeguards, including a sunset clause and a major review of the legal framework that governs surveillance. Will the Minister confirm that what we are talking about here does not in any way include the content of communications, merely that such communications have taken place?

When our Constitution Committee reported on constitutional implications and safeguards for fast-track legislation, it set out certain safeguards that Ministers must address in Statements to your Lordships’ House. First, Ministers must explain why fast track is necessary. I take that to mean not just the immediate necessity but, as I have already asked, why this was not brought forward earlier. It is also very clear that there should be a presumption of a sunset clause; that is, in effect, that any fast-track legislation should be temporary with an expiry date. We welcome the sunset clause in this Bill. It is essential that a date is set down in statute when the legislation will expire, and it must be reviewed during that period.

The Constitution Committee recommended this for any fast-track legislation. Another issue it raises is that parliamentary committees should be given the opportunity to scrutinise the legislation. Are arrangements being made to ensure that the relevant committees—and specifically the Constitution Committee—will have the opportunity to do so within the timetable, and will discussions take place regarding this?

Another matter the Constitution Committee raised was post-legislative review. I ask that the Government consider using the Interception Commissioner to review this on a six-monthly basis and report back to Ministers and your Lordships’ House.

Noble Lords will be aware that we have called for a review of RIPA, the Regulation of Investigatory Powers Act 2000. The shadow Home Secretary, Yvette Cooper, called for this back in the speech she made in March. As a noble Lord commented in our discussions this week on new legislation to tackle cybercrime, technology moves very quickly and criminals move very quickly. Our legislation has to keep pace with that. RIPA is now 14 years old and needs to be brought up to date. We also need that review to ensure that it is used appropriately. Will the Minister confirm that the reference in the Statement to reviewing,

“the interception and data powers we need”,

does in fact refer to RIPA and that a review will take place? Can he tell us if any decision has been made on who would undertake such a review and what resources and expertise will be made available for that?

Alongside a review of RIPA, we have also asked for an overhaul of the system of independent oversight commissioners, as outlined in the shadow Home Secretary’s speech in March. I ask the Minister to ensure that these reforms are considered as part of the review. Also, it would be helpful to have a wider public debate on this whole range of issues.

We believe that this legislation is urgent, but it is equally important that we have further scrutiny of the whole framework. I hope noble Lords will agree that longer-term reforms are needed.