Extradition
Baroness Stowell of Beeston Excerpts(11 years, 7 months ago)
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Lord Taylor of Holbeach
I thank the noble Baroness, who has been very generous in her welcome for this Statement. Indeed, I welcome her support on a number of the issues that she refers to. Perhaps I can help her on those specific questions that she asked me. The latest medical report that the Home Secretary received, which enabled her to come to this decision, was a review of other reports. It was not a report on or an examination of Mr McKinnon but a fresh report on the evidence that was available to the Home Secretary. I hope that that helps the noble Baroness.
I am very grateful on a number of issues. The Baker review recognised that one of the most difficult issues facing Governments on extradition was the delay in the process. Much of what the Government are seeking to do with the new arrangements on extradition that we intend to negotiate and put into place is meant to reduce delay. On the forum bar, for example, we know that it is going to be a different arrangement from that laid down in the 2006 Act, which was introduced by the previous Government but actually promoted by opposition Benches at the time. Clearly, that will not be fit for purpose for what we now see as the important issue of ensuring that the process is both fair and speedy. If I may say so, it would be good—I know that the Home Secretary welcomed this in the other place—to have cross-party co-operation on the construction of new arrangements for the forum bar.
The question of cybercrime was also raised in another place. I reassure the House that the Government are working with other countries on cybercrime; it is an international crime and clearly fits in closely with issues of extradition and the forum for the hearing of cases so that justice can be done and this insidious crime can be dealt with properly, in both the national and international interest.
On the European arrest warrant, yes, there is an ongoing review, as the noble Baroness implied. There are aspects of that warrant that are extremely useful, and none of us in government wishes to suggest otherwise. However, the previous Government made arrangements whereby we could deal with some of these matters by a withdrawal from the pre-Lisbon sections involving these things to enable us to renegotiate the details. We intend to do that in parallel with a number of other countries that share these concerns, and we do not see this as being a negative process at all. It is about making the European arrest warrant much more fit for purpose, introducing some proportionality into the issue, trying to avoid triviality and ensuring that there is no unnecessary delay in the process.
Baroness Stowell of Beeston
My Lords, I am grateful to the clerk for not starting the Clock so I do not eat into any of the precious time available to noble Lords on the Statement today. I know that there will be great demand to contribute today and that my noble friend will want to respond to as many noble Lords as possible. Because of that, I am sure that the House will find helpful if I remind noble Lords how the Companion guides us on Statements. The point that it makes is that this is an occasion for brief comments and questions.
Baroness Stowell of Beeston
The only group we have not yet heard from is the Conservative group.
Baroness Browning
My Lords, I refer to my interests in autism listed in the Members’ register. I welcome this Statement today about Gary McKinnon, but will my noble friend agree that the Home Secretary had the advantage of seeing medical reports from psychiatrists who have a working knowledge of Asperger’s syndrome, which made an enormous difference to the decision that she has made today? Over the past few years, I have had the privilege of reading Gary McKinnon’s medical reports. On moving decision-making from the Home Secretary to the High Court, will my noble friend discuss with his colleagues in the Ministry of Justice the need also for courts to be much more particular about where they source and commission such medical reports? The difference between a generalist psychiatrist assessing Asperger’s syndrome and those who have a working knowledge of it is the difference between justice and injustice.
Alcohol Strategy: Role of Drinks Industry
Baroness Stowell of Beeston Excerpts(11 years, 10 months ago)
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Baroness Stowell of Beeston
My Lords, I am sorry that my timing is a bit wrong tonight. I beg to move that the House adjourn during pleasure until 8.30 pm.
Justice and Security Bill [HL]
Baroness Stowell of Beeston Excerpts(11 years, 10 months ago)
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Baroness Stowell of Beeston
My Lords, before I resume the House, I will cover a bit of housekeeping relating to the next debate in the name of the noble Earl, Lord Clancarty. I remind noble Lords that, with the exception of the noble Earl and the noble Viscount, Lord Younger of Leckie, all speeches are limited to three minutes because this is a time-limited debate. I remind all noble Lords participating this evening that when the Clock hits three minutes, I am afraid that is a signal that time is up. Those who have a television background should maybe think of their Whip tonight as a floor manager—they will stand between you and the camera if they need to.
Justice and Security Bill [HL]
Baroness Stowell of Beeston Excerpts(11 years, 10 months ago)
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Baroness Stowell of Beeston
That the House do now again resolve itself into Committee.
Baroness Stowell of Beeston
My Lords, in moving this Motion, I should like to refer briefly, for the benefit of all noble Lords, to interventions during the moving of amendments. During the previous session of the Committee earlier this afternoon, there were four occasions when Peers intervened on noble Lords as they were moving amendments and there was a mix of reactions from around the Chamber and indeed the Table. I thought it might be helpful to explain that it is permissible to intervene on a noble Lord when he is moving an amendment, particularly to ask a specific question for clarification. However, it is not customary to do so in this House because once a noble Lord has moved his amendment, it is permissible for noble Lords to intervene as many times as they wish during the debate at Committee stage. I thought noble Lords might find that clarification helpful.
Justice and Security Bill [HL]
Baroness Stowell of Beeston Excerpts(11 years, 11 months ago)
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Baroness Stowell of Beeston
My Lords, as we continue the Second Reading debate on the Justice and Security Bill, and at the risk of sounding boring, I feel duty-bound to remind noble Lords that speeches from Back-Benchers are expected to be kept within 15 minutes. When I remarked on this earlier, I should have stressed that exceptions to those guidelines are made on occasion, rather than frequently.
Protection of Freedoms Bill
Baroness Stowell of Beeston Excerpts(12 years, 2 months ago)
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“( ) section 53 and Schedule 3,”
Baroness Stowell of Beeston
In moving Amendment 15, I shall also speak to Amendments 17, 26, 27, 28, 30 and 31. However, I shall not detain your Lordships as these are technical amendments, so unless a noble Lord wishes to raise a point, to which of course I shall be willing to respond, I beg to move.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Lord, Lord Ponsonby. I know that he has waited very patiently all afternoon. It may be of assistance to the House for me to remind noble Lords that, at Bill do now pass, once the Motion has been moved formally, as it just has, it may be opposed and reasoned or delaying amendments to it may be moved. However, in other circumstances it is not normally debated.
Lord Ponsonby of Shulbrede
My Lords, I wish to raise a new issue, which came to my attention at the end of last week. I was advised by the Public Bill Office that I should take the slightly unusual step of raising this new issue on this Motion. I also informed the Minister’s office that I intended to do this.
It is the intention of the Bill to adopt the Scottish model for protections for the DNA database, and therefore to find an equivalent to the Scottish sheriff courts in England and Wales. As currently worded, the Bill requires the hearings to be before a district judge from the magistrates’ court. This is too restrictive; all that is necessary is for the application to be made to a magistrates’ court. Whether to put the matter before a district judge or a lay bench of magistrates can then be decided locally. This may be a small point but it is one of principle and practicality.
The point of principle is that lay benches have exactly the same powers as district judges. There is only one exception to that, which is in the matter of extradition. Beyond that, it is a point of principle in magistrates’ courts in England and Wales that lay benches have exactly the same powers as district judges.
The point of practicality is that limiting applications to district judges will mean unnecessary inconvenience to citizens. There will be delay and there may be extra costs. The reason for that is that district judges tend to sit in large cities and may be less readily available than lay benches.
I realise that this matter is being raised at a very late stage. I have given the noble Lord notice of it and I look forward to his response.
Protection of Freedoms Bill
Baroness Stowell of Beeston Excerpts(12 years, 3 months ago)
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Baroness Stowell of Beeston
My Lords, in moving Amendment 54B, I will speak also to Amendments 54C to 54H, 54P to 54V, 60 and 61. This group of government amendments to Clauses 67 and 77, and the equivalent Northern Ireland provisions in Schedule 7, deals with barring decisions and barred list information.
Clause 67 provides that a person will be barred by the Independent Safeguarding Authority from working with children or vulnerable adults only if that person has been, is or might in the future be engaged in regulated activity. As my noble friend has already made clear this afternoon and at all stages of the Bill so far, in seeking to scale back the disclosure and barring scheme, the Government believe that it is disproportionate to bar a person if they have never worked in regulated activity and have no prospect ever of doing so. However, having listened carefully to the concerns raised in this House and by organisations such as the NSPCC, we have concluded that where someone has been convicted of a crime on the list of the most serious offences—that is, an offence that leads to an automatic bar without the right to make representations—the Independent Safeguarding Authority should bar that person whether or not they work or intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children’s barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances—that is why representations are not permitted—and there can be no question that the person is a risk to vulnerable groups.
Amendments 54B to 54E give effect to these changes in England and Wales, and Amendments 54P to 54S make similar changes to Schedule 7 in respect of Northern Ireland. Amendment 60 is consequential on Amendments 54B to 54E, and Amendment 61 is consequential on Amendments 54P to 54S. The other amendments in this group concern the provision of information by the Independent Safeguarding Authority to the police. Clause 77(4) states that the Independent Safeguarding Authority must, for one of a number of specified purposes,
“provide to any chief officer of police who has requested it information as to whether a person is barred”.
The current drafting requires the Independent Safeguarding Authority to provide to the police information only about whether a particular person is barred rather than the whole barred list.
The police have indicated that they need this information in real time—for example, if they were to stop someone driving a school minibus and needed to know whether they were barred. In practice, making requests to the Independent Safeguarding Authority on a case-by-case basis would not always provide the police with the information in the necessary timescale. Amendments 54F and 54G therefore provide that the ISA must provide to the police the whole barred list. The police will then be able to put appropriate flags on the PNC, and will have immediate access to barring information when they need it. Amendment 54H ensures that this requirement to supply the whole barred list does not extend to information provided to the prison and probation services. Amendments 54T, 54U and 54V provide for the same arrangement in Northern Ireland. I beg to move.
Baroness Royall of Blaisdon
My Lords, I am grateful to the noble Baroness for her clear explanation. I wholeheartedly welcome this amendment, for which we have been calling since the Bill was first introduced. As my honourable friend the Member for Hull North said in another place:
“There is a very good reason why someone who commits a serious offence is barred from working with children—because they pose a serious risk to children. That should mean that they are automatically barred from working with them”.—[Official Report, Commons, 11/10/11; col. 228.]
I have to say that I was astonished by the Government’s original proposal that a man convicted of raping a child would not automatically be barred from working with children. I am grateful to the Government for listening and introducing this amendment which clearly puts right what was, I believe, a miscalculation of risk.
I have one or two questions for the noble Baroness but I hope not to detain her for long. She will know that the amendment which I tabled in Committee not only reinstated automatic barring but provided for an appeals process for individuals. Do the Government plan to review the existing appeals processes—based on written submission by the individual—to allow for appeals hearings in person, as were provided for by my amendment? How do the Government propose to ensure that there will be a consistent and proportionate approach to enhanced disclosures across all police authorities?
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness, Lady Royall, for her support for this amendment. As I said in my opening remarks, we have listened carefully and are pleased to table this amendment. The only thing that is perhaps worth making clear is that the absence of an automatic bar does not give anybody an automatic right. We have ensured that anybody who has been convicted of the most serious crime and has no opportunity to make representation is automatically barred. However, this does not mean that those who are not automatically barred have an automatic right—the opposite is not true for them. A proper process will follow.
As regards the amendment tabled by the noble Baroness in Committee and plans to review the existing appeals process, we are ensuring that representations can be considered in advance. The change we are making to the barring and vetting process will mean that somebody who is about to be employed in a regulated activity, and is therefore subjected to checks of the kind we are discussing, will receive the certificate and have the opportunity to challenge any information that is on it before it is made available to the employing body. Therefore, the opportunity for that challenge is at the start of the process rather than after a certificate has been issued to a prospective employer or organisation for which somebody might volunteer. Representations can include oral representations—they do not necessarily have to make their appeals or representations in writing—but at the moment we are not planning any further changes to the appeals process.
On the noble Baroness’s final point about the police process, if I understood correctly, the point that she was making was that this system of ensuring availability of the barred list should be consistent across all police authorities. I can confirm that that is the case.
“120AD Registered persons: copies of certificates in certain circumstances
(1) Subsection (2) applies if—
(a) the Secretary of State gives up-date information in relation to a criminal record certificate or enhanced criminal record certificate,(b) the up-date information is advice to apply for a new certificate or (as the case may be) request another person to apply for such a certificate, and(c) the person whose certificate it is in respect of which the up-date information is given applies for a new criminal record certificate or (as the case may be) enhanced criminal record certificate.(2) The Secretary of State must, in response to a request made within the prescribed period by the person who is acting as the registered person in relation to the application, send to that person a copy of any certificate issued in response to the application if the registered person—
(a) has counter-signed the application or transmitted it to the Secretary of State under section 113A(2A) or 113B(2A),(b) has informed the Secretary of State that the applicant for the new certificate has not, within such period as may be prescribed, sent a copy of it to a person of such description as may be prescribed, and(c) no prescribed circumstances apply. (3) The power under subsection (2)(b) to prescribe a description of person may be exercised to describe the registered person or any other person.
(4) In this section “up-date information” has the same meaning as in section 116A.”
Baroness Stowell of Beeston
My Lords, I will also speak to Amendment 55 in the names of my noble friend Lord Addington and the noble Baroness, Lady Royall, and to government Amendments 58, 59, 62 to 69 and 72.
First of all, I should say how grateful I am to my noble friends Lord Addington and Lady Heyhoe Flint, who my noble friend Lord Addington has indicated is unable to be with us today, and to other noble Lords—notably the noble Baroness, Lady Grey-Thompson—for the time that they have taken to talk to my noble friend Lord Henley and me about their concerns about the issue of certificates. I hope that, given the amendment that I am able to move today, noble Lords will feel that it is no longer necessary for them to move the amendment in their names.
Although the intended effect of Amendments 54W and 55 is broadly similar—namely, that a copy of the criminal record certificate should be sent to the registered body as well as the applicant after a specified period has elapsed—their actual impact is significantly different, as I have said. We have listened to the concerns expressed about the single certificate provisions, and we are keen to ensure that there are no safeguarding gaps in respect of those individuals already employed. Amendment 54W therefore provides a facility for the Secretary of State to send to a registered body a copy of a criminal record certificate in specific and limited circumstances.
This facility will apply where a registered body uses the new updating service introduced by Clause 83 and is informed that a new certificate should be applied for—in other words, that there has been new information since the most recent certificate. If the registered body informs the Secretary of State that the individual has not sent to it a copy of their certificate within a prescribed period—we envisage a period of some 21 days —and requests a copy of the new certificate, the Secretary of State must comply with that request.
However, a copy of the certificate will not be sent if prescribed circumstances apply, principally when the individual has challenged the information on the new certificate, which is what the noble Baroness and I were just discussing with regard to the last group of amendments. Any such requests made by a registered body will need to be made in a timely manner—there is provision to prescribe a time limit—to ensure the smooth operation of these arrangements.
Our proposed change will be particularly relevant to large organisations which consider certificates centrally, and which will be able to advise their local branches of any issues arising. This applies in particular to the examples that my noble friend Lord Addington will no doubt draw on in his contribution to today’s debate.
We recognise that there may be occasional instances in which an applicant delays providing a copy of the certificate to their employer. The amendment provides a way for registered bodies to see a copy of the new certificate in those circumstances, while still ensuring that, when an applicant has challenged the contents of the certificate, the employer will not see that information until the challenge has been resolved.
Baroness Royall of Blaisdon
My Lords, I was very pleased to add my name to the amendment in the name of the noble Lord, Lord Addington. As he said, it is not a perfect solution to the problems created—it does not address the concern of voluntary organisations up and down the country that individuals with minor and irrelevant criminal histories will be deterred from volunteering by having personally to submit their certificates to organisations, and it could strengthen the concern of groups with a high turnover, such as the care sector, that the bureaucracy caused by eradicating what was a quick and automatic process will mean that key roles are not filled quickly enough. However, I believe that accepting the amendment will provide the best iteration of what will potentially be a messy and bureaucratic process, and I think that the clarification requested by the noble Lord will be important to organisations’ understanding of the process.
I also note with pleasure the Government’s own amendment. I welcome the fact that, again, they have listened to the concerns of this House. However, I fear that the ultimate result of the changes to the process of CRB disclosure will be a system that is more complex for organisations to administer, and I worry that this could have a stifling effect on our voluntary sector.
I understand that two separate costs will be involved in the new portable CRB checks: a cost for initial disclosure and a cost for an ongoing subscription to update and validate the disclosure on a rolling basis. How do the Government propose to ensure that they do not create a two-tier system in which some individuals pay for only initial disclosure and do not access the new portability benefits by paying for a subscription? Will the Government confirm whether volunteers will be charged for the ongoing subscription, and why are they seemingly preventing the portability of checks between work with adults and work with children? It looks as though employers will have to apply separately for CRB checks and barring information, despite the fact that the Government are bringing the two organisations under one roof through the new Disclosure and Barring Service. Is this the case? Perhaps I am mistaken.
Baroness Stowell of Beeston
I am grateful to my noble friend Lord Addington and the noble Baroness, Lady Royall, for their remarks during this short debate. I start by responding to a point made by the noble Baroness, Lady Royall, about the potential for the new arrangements that we are putting in place to deter people from volunteering or to make the process more complex. I would disagree with that. There is the very clear and simple principle to which I referred a few moments ago that, in putting themselves forward, people will understand that they will be subjected to the necessary checks in order to safeguard young people and vulnerable adults. They will know that they will get the opportunity to see that certificate before it is issued not just to a prospective employer, but perhaps to a small group which is run by people who are volunteers themselves—not a big organisation. I think some people will find comfort in that.
The noble Baroness is right to say that there are some complexities to this wider topic and we have acknowledged that in the course of our debates today. However, we live in a very sophisticated world and I do not think that we should have a system that is not sophisticated enough to ensure that we address those who might put our children at risk. We should also make sure that those who are very able and who would do a really good job working with young children and others are not barred by us having a system that deters them. I understand where the noble Baroness is coming from but I disagree.
My noble friend raised some points about the amendment that we are discussing today. I repeat that we are talking about the single certificate and how a body could check that the person it wants to work with it is suitably cleared. I note what he said about volunteers being encouraged to get more involved in civic society. It could be argued that the new system that we are putting in place will make it easier to accommodate that because the online process, and the system of allowing someone to use the portable arrangements, will mean that we are trying to support people doing something and that we are providing a system to make that work effectively.
My noble friend asked again about the guidance that we have referred to already. I absolutely understand the point he is making that the organisations, particularly those that survive on the goodwill of the volunteers who work with them, want clarity in ensuring that they are doing the right thing and know how and when to pursue the checks and how and when to follow them up. I can make it absolutely clear to my noble friend that we will develop the guidance in consultation with the voluntary organisations and the sporting bodies that he has introduced during the passage of the Bill. We will want to outline best practice so that they know when is the right time to pursue an individual and check further for the evidence that they need. For example, if the registered body informs the Secretary of State that the individual has not sent it a copy of the certificate within a prescribed period which we envisage to be 21 days, it would have to wait 21 days before making a representation to the relevant body.
We have listened very carefully to the concerns that were expressed. We want to make sure that the guidance we introduce will provide organisations with the cover that people who are put in positions of responsibility feel that they deserve in order to make sure that they exercise their responsibilities properly. I hope that that provides the assurance that my noble friend seeks.
The noble Baroness asked about costs and charges, and whether volunteers would be charged for updating. I cannot give her a response today, but I will come back to her on that. She asked also about the difference between CRB checks and barring checks. They exist for different purposes. When somebody is employed, about to be employed or is volunteering to do regulatory activity for an organisation, the organisation has a statutory obligation to ensure that an application is made for that person to be checked and for a certificate to be issued. If the activity is unregulated, the organisation can still pursue a check if it wishes. In the process of the application being made, the authorities will determine whether the barring aspect of the check will kick in. It will not be a case of somebody making a specific request for the barring check; it will happen in the course of the process of application. The uncertainty will be taken care of and the decision will be made by those with the necessary information.
I hope that I have answered the concerns and points raised today by noble Lords. I beg to move.
Lord Collins of Highbury
My Lords, I support my noble friend’s amendments, which would make common-sense improvements to the operation of the Freedom of Information Act. I will not repeat the arguments he has made so eloquently, but I would like to raise a few points.
These amendments strengthen the individual’s right to freely access public information and the presumption in favour of openness and accountability in public bodies. The democratisation of knowledge and communication through the internet is the most important revolution of our age. People simply do not accept bureaucratic barriers to information any more, and we must have legislation that is alive to responding to new realities. It is therefore essential that the processes for accessing information do not work against the principle that the burden should be on the body providing the information, not on the individual seeking it. This includes the cost of seeking such information and I urge the Government to think again if they are planning to increase charges.
The 40-day maximum cap on complying with freedom of information requests is both simple and workable. As my noble friend pointed out, it comes from the recommendations of the Information Commissioner, who said:
“In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days”.
The House has learnt first hand the frustration of delays that can be caused by decisions and successive appeals on the basis of public interest, which no doubt we shall return to when we resume consideration of the Health and Social Care Bill.
We must seize every opportunity to ensure that the process itself never becomes the reason why individuals are denied access to public information. We must also ensure that the principle of public accountability at the heart of the Freedom of Information Act established by the Labour Government is not diluted by changes in the nature of delivery of public services, as noble Lords have pointed out. As my noble friend has said, the public have a right to access information about how their money is spent and I hope the Minister will seize this opportunity to restore the levels of public sector transparency enjoyed before the Localism Bill was enacted.
Baroness Stowell of Beeston
My Lords, I start by making it clear that this Government very much support freedom of information and increasing openness and transparency—there is absolutely no doubt about that. Indeed, I am sympathetic to Amendment 55ZA, moved by the noble Lord, Lord Wills, in relation to the timeliness of public interest deliberations, and his proposal to make the Information Commissioner’s recommended best practice a statutory requirement.
Public authorities must answer freedom of information requests promptly. They must not be unnecessarily slow in responding, and any extension to the time limit for responding to such requests should only be claimed where absolutely necessary. As I mentioned to the noble Lord when we debated similar amendments tabled by him in Committee, I have some experience—although not in government—of being on the receiving end of FOI requests that are complex and invoke public interest tests.
As I said then, it is certainly the case that, in general, timeliness in responding to freedom of information requests is good. In 2010, 86 per cent of requests were answered by bodies monitored by the Ministry of Justice within 20 working days. It is also worth noting that in central government time extensions for the consideration of the public interest test remain relatively rare and the proportion of requests which have resulted in such an extension fell to 4.5 per cent in 2010.
Lord Wills
Will the noble Baroness confirm that those figures do not cover local government? Will she further confirm that it is her understanding as it is mine that most of the interests that the citizens of this country have are in local authority functions and not central government functions?
Baroness Stowell of Beeston
I can certainly confirm that the figure I quoted for the extension of requests under the public interest test relates only to central government. As to general requests under FOI, these bodies were monitored by the MoJ. I am afraid that I do not have to hand which bodies they are. The figures do not cover local government.
However, I accept that there is room for improvement, especially where the deadline is extended to allow consideration of the public interest test. The Information Commissioner is watchful of public authorities where timeliness is an issue and has taken effective action in this area. In 2011, the commissioner announced that out of 33 bodies being monitored in relation to timeliness issues, 26 had made sufficient improvement to be removed from his watch list. While further action is required from the remaining bodies, it is clear that the Information Commissioner’s Office has been effective in improving timeliness.
The introduction of new statutory deadlines is a potential way of strengthening the Freedom of Information Act, as the noble Lord has put forward, provided that it does not lead to hasty decisions that are not fully informed. An absolute limit of 40 days raises some concerns about the potential for such an effect and therefore we need to give the impact of changes of this type full consideration before their introduction. For that reason, I cannot accept his amendment today.
As the noble Lord has predicted I might say, but not for the reasons he suggests, this is something that I strongly believe should be properly scrutinised and considered in the course of post-legislative scrutiny, which is now under way by the relevant Select Committee of the other place, chaired by the right honourable Alan Beith. I certainly will ensure that he receives the official record of our debate today.
It is also worth pointing out that I genuinely think that the proposal put forward by the noble Lord, as much as it has merits, requires very careful consideration. I will look forward to his contribution to the process of post-legislative scrutiny that is ongoing.
Amendment 55ZB, again in the name of the noble Lord, Lord Wills, seeks to extend the Freedom of Information Act to information held by contractors working on behalf of public authorities about the performance of those contracts where those contracts are worth more than £1 million. The noble Lord has found support today from the noble Earl, Lord Erroll, my noble friend Lord Lucas and the noble Lord, Lord Collins, on this issue. As the noble Lord, Lord Wills, is aware, the Government have extended the FOI Act and are taking steps to extend it further. We have made an order under Section 5 of the Act extending its scope to, among others, the Financial Ombudsman Service. We have commenced consultations with more than 200 further bodies about their possible inclusion through future Section 5 orders and we intend to consult more than 2,000 housing associations later this year in relation to their possible inclusion.
In addition, Clause 103 of this Bill will extend the Act to companies wholly owned by two or more public authorities, thereby removing the anomaly whereby a company is subject to the FOI Act only if wholly owned by one public authority but not by two or more. I hope that the noble Lord recognises that these are significant changes.
I understand the point that the noble Lord and others have made today that as services are subcontracted out, whether by local government or by other public services which have been mentioned today, the public should not be left short of any information that might be needed to assess the effectiveness and efficiency of those services. But as I mentioned to the noble Lord in Committee when we debated this, even when a service is subcontracted out, it is still the responsibility of the public authority in terms of the accountability for that service to the public. It is the relevant organisation which should be held to account. In the way in which the contracts are constructed, it should be possible for the public to receive from the contracting authority the information that is needed in order to ensure that the services being carried out and paid for with their taxes are actually performing as they would want them to.
As my noble friend Lord McNally stressed last year, it is important to ensure that changes to the way public services are delivered do not undermine our pledge to increase openness and accountability, and there is certainly a challenge to be met here. I would like to restate that our continued opposition to this amendment does not stem from any lack of commitment to the cause of increased openness and accountability. We are already considering this issue and it will be further considered in the response to the Cabinet Office consultation on the draft transparency and open data strategy.
I may have covered this point, but I want also to say to the noble Lord that there is a provision in the FOI Act as it stands that extends its scope to public bodies. I believe that it is set out in Section 5. If and when other public authorities, bodies or organisations should be covered by the Act, we do not need new legislation, or we will be subject to the kind of delay that he seems to think post-legislative scrutiny would bring about. We actually have a mechanism to ensure that as and when we feel it is right and proper to extend the Act, we can do so.
The Earl of Erroll
My Lords, I have a brief question for the noble Baroness. Is she saying that public authorities should be writing into their contracts a provision that would allow for freedom of information requests, and that is what she is relying on rather than it being put into the law?
Baroness Stowell of Beeston
No, I am not saying that. I am not in a position to go that far because it would take us into an area on which I do not have the authority to speak today. I am making two separate points. One is that a public authority is the body which is accountable to the public for any services that it might subcontract out. In the course of its contractual arrangements with the subcontractor I would expect, in order to ensure it is properly accountable, it should ensure that it is able itself to access the information it needs. I do not think it is proper to prescribe the detail in the way that has been put forward by the noble Lord. For example, it is not clear how the £1 million contract threshold would be calculated. How would additional payments which might take the value over £1 million be taken account of? Different public authorities might take different approaches to valuation. If that happens, the approach will not be applied consistently. I worry that the amendment might be attractive on its face but deceptively difficult to operate on the ground. I am not saying that issues such as this are insurmountable; I merely use this as an illustration of why careful consideration is necessary to ensure clarity for public authorities, the Information Commissioner and users alike.
I have also made the point previously that to comply with FOI requests for contractor information public authorities would need to have access to any information held by the contractor that is potentially relevant in terms of responding to the request. Such a requirement to share all such information with the public authority so that the authority might comply with FOI requests could adversely affect the effective delivery of the contract. Again, I am sure that solutions to this issue exist, but they require careful consideration.
I reassure the noble Lord, Lord Wills, that our opposition to the amendments results from the need to make sure that effective and proportionate solutions are developed. It does not result from a lack of a commitment to transparency or the effective operation of the Freedom of Information Act. I therefore invite the noble Lord—
Lord Wills
Before the Minister invites me to withdraw the amendment, will she answer two questions for the purpose of clarification? The first is in relation to the undertaking that she gave in Committee to contact the Information Commissioner. Has such contact been made? If so, what was the result of it? If it has not, when will it be made? Secondly, she referred earlier to her belief that the Government have the mechanism and the will to act promptly should they decide that it is necessary to do so, and that the delays that I fear will happen will not take place. Is that mechanism Section 5 of the Act and, if not, what mechanism is she referring to other than primary legislation?
Baroness Stowell of Beeston
On the former of his questions, I am not able to give the noble Lord a reply today, but I will follow it up with him in due course. On the latter, I am not proposing any new legislation; I am referring to Section 5 of the FOI Act, in that it gives us the opportunity and the provision, should we need it, to extend the Act to cover new bodies in the way that we are using it right now. I hope that that answers the noble Lord’s question and that he will feel able to withdraw his amendment.
Lord Wills
I am grateful to the Minister for a characteristically gracious and thorough response. I am grateful, too, for the support that I have received from all sides of the House for both amendments. I am sorry that the Government have not taken account of the compelling cases made by the noble Earl, Lord Erroll, the noble Lord, Lord Lucas, and my noble friend Lord Collins on the Front Bench. I note what the Minister said in relation to Amendment 55ZB and my fear that any legislation will create a delay. She referred to Section 5. I am afraid that this only makes my point: the extension of the coverage of the Act under Section 5 to which she referred, and to which the Government always refer as a great indicator of their commitment to freedom of information, was, I have to tell the Minister, work put in train by the previous Government. I was the responsible Minister. It has taken all this time. That work was started in around 2008—I cannot remember exactly when. Four years later, this Government are now able to claim credit for that. The extension would not necessarily cover all the areas that should be covered by my amendment, so if the Minister is relying on that as a mechanism for speed in rectifying this problem, I am afraid that she is just wrong.
I hope that the Government will look again at this issue. I hear what the Minister says and I have no doubt about her personal commitment to transparency, but all the noises that we hear in the media as emanating from Whitehall are of the deep hostility of the entrenched, vested interests of the state to this agenda of transparency. All I can say is that I wish the Minister well in her forthcoming battles with those vested interests.
Lord Berkeley
This amendment is designed to include Trinity House within the scope of the Freedom of Information act. The noble Lord, Lord Henley, has reminded the House this evening that a review of the FOI Act is going on, which is very welcome, but I am hoping that the Government will accept my amendment on the basis that they have already committed to include Trinity House in the FOI Act, as I shall demonstrate, and it would save a lot of time and effort.
Trinity House is the lighthouse and navigation aids authority that maintains the navigation aids around the coast of England and Wales. I think it should be included because I believe it is a public body. Ships going into UK ports pay light dues into a central fund called the General Lighthouse Fund, which is administered and disbursed by the Department for Transport to the three lighthouse authorities in England, Scotland and Ireland. This amendment would bring Trinity House in line with the Northern Lighthouse Board, which looks after the lights in Scotland and is already covered by FOI. If Ministers are concerned about how much extra work it would be for the GLF, I understand that the Northern Lighthouse Board has received just over 40 FOI inquiries, so I do not think it is any great effort for lighthouse authorities to be included.
I thought of including the Commissioners of Irish Lights in this amendment, but since the Minister for Shipping, Mike Penning MP, is at the moment negotiating with the Irish Government a very welcome change so that the lights around Ireland are not funded by ships going into UK ports by the time of the next election, I thought I would leave the Commissioners of Irish Lights out.
The Independent Light Dues Forum wrote to the Ministry of Justice on 25 January 2011 welcoming the ministry’s announcement about opening public bodies to public scrutiny and the possibility of including Trinity House within FOI. The ministry responded on 23 February last year saying that Trinity House would be consulted about possible inclusion, which is absolutely right, of course. On 5 May, I received a letter from the noble Lord, Lord McNally, that stated:
“We intend to extend the Act to bodies which we believe to perform functions of a public nature, such as the Trinity House Lighthouse Service, through secondary legislation under section 5 of the Act rather than the Protection of Freedoms Bill”.
He did not say why. It would achieve the same objective if this Bill were amended now.
When she replies, will the Minister say why it matters which legislative route is to be used to deliver the same outcome? I think it is quite important that this happens quite quickly. It is a year since this was first raised, and I hope that the Minister will accept my amendment, if only to avoid me bothering her again. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction of his amendment. As he explained, the Government announced on 7 January last year our intention to consult a number of bodies about them being subject to the Freedom of Information Act by virtue of an order made under Section 5(1)(a) of the Act. It is a shame that the noble Lord, Lord Wills, is not in his place because this is relevant to the earlier debate.
A body may be included in such an order to the extent that it exercises functions of a public nature. As the noble Lord, Lord Berkeley, said, this consultation includes the Trinity Lighthouse Service and is currently ongoing. The consultation process is an important one. It is designed to ensure that all relevant legal and policy factors are considered before a final decision is made about whether some, or all, of the functions of a body such as Trinity House should be covered by the Act.
The Corporation of Trinity House undertakes a number of important functions. Without wishing to express a view while the consultation is ongoing, I can understand why the noble Lord might consider its functions as a general lighthouse authority to be the sort of thing that could be covered by the FOI Act. As he said, the letter that he received from my noble friend Lord McNally stated that to be the case. The fact that the Northern Lighthouse Board is already covered obviously provides another point of comparison.
However, the Corporation of Trinity House also undertakes a number of other functions as a charity and as a provider of deep sea navigation pilots for ships trading in northern European waters. In light of this, we need to consider carefully which, if any, of the corporation’s functions should be brought within the Act. The consultation process currently taking place is designed to allow for this sort of consideration to take place.
Lord Berkeley
Perhaps I might ask the noble Baroness about the length of the consultation period. The letter that I quoted from, dated 5 May 2011, from the noble Lord, Lord McNally, said:
“We are currently in the process of consulting the bodies concerned”.
It is very unusual for a government consultation to go on for nine months. Have the Government started another consultation? It is very good to have such long consultations, but it is a bit unusual. When is the consultation on the Trinity House issue going to finish? I would be very grateful for the noble Baroness’s response.
Baroness Stowell of Beeston
We certainly plan to conclude the consultation fairly soon, and to bring an order under Section 5 for all the new public bodies that we are currently consulting on later in the year.
Lord Berkeley
I am very grateful to the noble Baroness for that answer and I beg leave to withdraw my amendment.
Baroness Stowell of Beeston
My Lords, this amendment and those grouped with it are all minor technical amendments. I beg to move.
“(2) The Welsh Ministers may by order made by statutory instrument make such transitional, transitory or saving provision as the Welsh Ministers consider appropriate in connection with the coming into force of any Welsh provision.
(3) In this section “Welsh provision” means any provision of this Act so far as it falls within section 118(3).”
Protection of Freedoms Bill
Baroness Stowell of Beeston Excerpts(12 years, 3 months ago)
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Baroness Stowell of Beeston
My Lords, I withdrew a similar amendment in Committee in order to take more time to consider carefully the concerns expressed by noble Lords. Having done so, I am confident about introducing this amendment.
Among other things, Clause 3 sets out the rules governing the retention of the DNA profile of a person arrested for a serious offence but not charged with that offence. In such cases, the police can apply to the biometrics commissioner to retain the DNA in certain circumstances, including where the alleged victim of the offence was a vulnerable adult. As my right honourable friend the Home Secretary said at Second Reading in another place:
“We must protect the most vulnerable in society, so when the victim of the alleged offence is under 18, vulnerable or in a close personal relationship with the arrested person the expectation is that the police will apply to the commissioner for retention”.—[Official Report, Commons, 1/3/11; col. 207.]
Amendment 6 seeks to replace the definition of “vulnerable adult” as used in this context.
Currently, Clause 3 defines a vulnerable adult by reference to Section 60(1) of the Safeguarding Vulnerable Groups Act 2006. However, as we will see when we consider Part 5, Clauses 65 and 66 seek to amend the definition of a vulnerable adult in the 2006 Act to mean any person over the age of 18 in receipt of a regulated activity—for example, health or personal care. The changes made by these clauses to the definitions of vulnerable adult and regulated activity put the emphasis on the activity and the person carrying out that activity. The Bill no longer attempts to define vulnerability or label a person as a vulnerable adult. As a result, the definition in the SVGA is not relevant in the context of Clause 3.
Perhaps I may explain further. Clause 3, which we are discussing, is about protecting victims of crime. Clauses 65 and 66 are about protecting those necessarily in receipt of personal care or who rely on the support or contact of others. They are two separate things. The amendment therefore draws on the definition in Section 5(6) of the Domestic Violence, Crime and Victims Act 2004, which defines a vulnerable adult as,
“a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise”.
The reason why the amendment inserts the definition in full in new Section 63G(10) of the Police and Criminal Evidence Act, rather than merely referring to the 2004 Act, is that our definition refers to persons aged 18 or over, given that the definitions in new Section 63G(2), as inserted by Clause 3, already include all those under the age of 18. For the purposes of protecting those who are truly vulnerable, we believe that this definition is far more apposite. It will cover and protect more people.
Baroness Royall of Blaisdon
My Lords, I am very grateful to the Minister for the explanation this evening and for the letter that she kindly sent me following Committee. These are complex issues. I hope that she will forgive me if I am asking questions that she has already answered. Essentially, to introduce a new definition of “vulnerable” complicates the issue in many ways. Although I hear what she says—that this definition is imported from another criminal justice Act—it is not the tried and tested definition of “vulnerable” and it would be far easier if people knew exactly where they stood.
I still have serious concerns about the appropriateness of the new definition. As the noble Baroness said in Committee, I disagreed with the restrictions that the Government placed on the retention of DNA data from those arrested for but not charged with a serious offence. That is a misleading distinction which has serious consequences for victims of crime with historically low charge rates, such as rape. As stated in the letter, the Government recognise that vulnerable members of society should be given special protection in such situations, and new Section 63G aims to provide for the retention of DNA data for those arrested for offences against victims deemed to be vulnerable adults.
At Second Reading in the Commons, the Home Secretary, the right honourable Theresa May, stated, on the conditions where new Section 63F(5) would apply:
“I would expect that application to be made in certain circumstances, such as when the victim has been vulnerable, which may mean there is very good evidence that the individual concerned has committed a crime but the victim is not able or not willing to come forward and see that case through”.—[Official Report, Commons, 1/3/11; col. 206.]
However, the Government’s proposed amendment to the definition of vulnerable adult recognises only those individuals who are subject to mental or physical impairment as being particularly vulnerable to problems in bringing forward a charge of providing evidence.
In particular, the new definition requires that an individual’s ability to protect himself or herself from violence, abuse or neglect is significantly impaired. The definition, particularly with the addition of the qualification “significantly”, adds a large element of discretion, leaving judgment of the vulnerability of the victim up to the discretion of the officer dealing with the case. I am concerned that such a definition is open to wide interpretation, which may mean that vulnerable adults are not given sufficient protection under the Bill.
An individual’s circumstances are a key indicator of their vulnerability, as is recognised by the definition used under Section 60(1) of the Safeguarding of Vulnerable Groups Act 2006, which lists a number of different circumstances in which an adult should be classed as vulnerable. The proposed new definition also neglects the fact that the type of offence will often determine the particular vulnerability of the individual and lead to problems which may account for the lack of any charge being made.
I note that the noble Baroness says that women who have been subjected to violence are covered under a different clause, although they are not covered by the definition of “vulnerable”. I am glad that that is the case, but it is complicated. They cannot read the Bill and see that they are covered as being vulnerable.
I will not press the amendment to a vote, but there are still questions to be answered. I do not expect the noble Baroness to answer me this evening, but if we could have further discussion about this to sort out some of my remaining concerns I would be extremely grateful.
Baroness Stowell of Beeston
On the change of definition of vulnerable adult, as I tried to explain in moving the amendment, it is important that we do not use the definition applied later in the Bill in the context of victims. If we did, we would be at risk of creating the opposite situation from what the noble Baroness wants. Later in the Bill, the definition of “vulnerable adult”, as amended, is intended to define people's vulnerability in terms of the activity in which a person may have to engage with them. As I said, whether it is personal care or whether someone is required to be in close proximity to someone else, we want to define vulnerability as far as whether someone should have the right to access the person.
In this part of the Bill, we are focusing on victims of crime. The fact that we are using a definition that already exists—it predates the definition that the Bill amends later—seems to me a simpler way forward. It is clear which people it is intended to protect. The definition states that it,
“means a person aged 18 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise”.
I understand the noble Baroness’s point about the use of “significantly” and whether or not the definition excludes some people whom she thinks might be captured by the other definition. I disagree. Under the other definition, which is dictated by the nature of the care that people receive, some people who are old may not be in receipt of any specific care that would define them as vulnerable. The fact that they are old would suggest that they are vulnerable in this context, so this definition would capture more people. Also, “otherwise”, at the end of the definition, means that there is discretion for the police in considering who is vulnerable. I would expect the new DNA strategy board to offer guidance to the police on how to consider the definition of vulnerability when they make their application to the biometrics commissioner.
One thing behind the noble Baroness’s concern, which I share, is that in the context of a crime such as rape, and violent crime against somebody, the impact of the crime might make somebody vulnerable. The definition taken from the Domestic Crime, Violence and Victims Act already suggests what the police might consider under the definition of “vulnerable”.
I understand where the noble Baroness is coming from. I was very careful to consider the issues that she raised in Committee and I wanted to explore them with officials in great detail before bringing the amendment back to your Lordships today. However, I am as convinced as I can be that this is a clear safeguard. Women in refuges or secure housing are clearly caught by the other limb of the Bill, meaning that they would have been in a refuge centre because somebody known to them had been violent towards them. That is clearly covered by the other part of the Bill and would mean that, if it was anybody known to the victim, that would allow the police to apply for that DNA to be retained.
I am clear that the wording is sufficiently comprehensive to cover what we are trying to achieve, which I outlined in moving the amendment, and at the same time to protect those who are most vulnerable. I shall of course be willing to discuss further with the noble Baroness outside the Chamber any of her concerns, but I felt that it was appropriate for me to move this amendment.
Baroness Hamwee
The noble Baroness pointed to the words “or otherwise” at the end of the amendment. I may not have been paying sufficient attention to the argument, in which case I apologise, but if this matter is considered further perhaps she would take on board that within this definition the impairment is through only physical or mental disability or illness, and that the last five words are a description of what might cause the physical or mental disability or illness. Therefore, one cannot read “or otherwise” as extending the impairment. I repeat: the impairment is only through disability or illness. As I listened to the noble Baroness, I thought that she was asking us to read “or otherwise” as adding to “disability or illness”, which I do not think it does.
Baroness Stowell of Beeston
I am sorry if I in any way misled your Lordships. In her definition of those final five words—particularly the use of “otherwise”—the noble Baroness is correct. I was seeking to make it clear that impairment through physical or mental disability could be due to old age or otherwise. I am not trying to introduce something new; I am saying that it is possible for the impairment to be not just limited to old age. I hope that I am making myself clear; it does get rather complicated. However, in simple terms, I think that the noble Baroness is right.
“(5A) The responsible chief officer of police may apply to a District Judge (Magistrates’ Courts) for an order to retain a sample to which this section applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5) if—
(a) the sample was taken from a person in connection with the investigation of a qualifying offence, and(b) the responsible chief officer of police considers that the condition in subsection (5B) is met.(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—
(a) disclosure to, or use by, a defendant, or(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.(5C) An application under subsection (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5).
(5D) If, on an application made by the responsible chief officer of police under subsection (5A), the District Judge (Magistrates’ Courts) is satisfied that the condition in subsection (5B) is met, the District Judge may make an order under this subsection which—
(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of subsection (4) or (5), and(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.(5E) An application for an order under subsection (5D) (other than an application for renewal)—
(a) may be made without notice of the application having been given to the person from whom the sample was taken, and(b) may be heard and determined in private in the absence of that person.(5F) A sample retained by virtue of an order under subsection (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.
(5G) A sample that ceases to be retained by virtue of an order under subsection (5D) must be destroyed.”
Baroness Stowell of Beeston
My Lords, as we have previously discussed, the Bill creates a general rule that all individual samples will be destroyed within six months of being taken. This represents a significant step in protecting the civil liberties of those whose DNA is taken in the course of a criminal investigation, as it ensures that the particularly sensitive genetic material, which is generally not needed for identification purposes, is destroyed at the earliest opportunity.
However, as we have proceeded with our consideration of how to implement the provisions of the Bill, prosecutors at the Crown Prosecution Service have made representations to us that, in a limited number of cases each year, it would in fact be necessary to retain the individual samples in order to deal with any subsequent challenge by the defence to the comparison made between the DNA of the individual and that found at the crime scene.
Prosecutors are concerned that, if they are not able to retain samples in these cases, they might be unable to withstand such a challenge and acquittals on technical grounds might result. An example of the type of case where such an issue might arise could be where the crime scene stain contained a mixture of, for example, the blood of both a murder victim and their attacker, and possibly a third person, such as an innocent housemate of the victim. In such a sample, the quantity of material from the victim is likely far to exceed that from the attacker and the innocent third party but, without retaining the reference samples from all three individuals, the chemistry and analysis used to derive the three individual profiles, and thus to make a match to the suspect, might be open to challenge in court.
Amendment 7 would therefore insert into Clause 14 a mechanism to enable the police, very early in a case before any samples had been destroyed, to make an application to the local magistrates’ court to retain all the individual samples in a case for a period of 12 months. That should be long enough in the majority of cases to identify a suspect and complete the pre-trial disclosure process, as part of which it would be established whether the defence intended to mount a challenge to the derivation of DNA profiles and/or matches. If not, the material would be destroyed at that point.
If a suspect had not been identified at the 12-month point, or if the derivation of the profiles and/or matches was still in dispute, the police would be able to apply to the courts to retain the material for a further 12 months, with further such applications available until either the case was concluded or there was no need to retain it any longer. If at that stage a suspect had been identified and criminal proceedings were under way, Section 66 of the Courts Act 2003 would allow the trial judge to deal with the application to continue to retain the samples.
I emphasise to your Lordships that we anticipate this procedure being used in only a handful of cases each year, all of which must be serious crimes on the qualifying offences list. While biological samples will be retained following a successful application, those samples will be able to be used only in the case for which they are taken and no extra profiles will be retained on the National DNA Database.
Given that the concerns of prosecutors would also apply in respect of the prosecution of those arrested under the Terrorism Act 2000, we are making similar provision in Part 1 of Schedule 1.
I turn briefly to the other amendments in this group. Amendment 8 to Clause 17 is technical and confirms that material taken under the regimes in the International Criminal Court Act and the Terrorism Prevention and Investigation Measures Act is not subject to the rules in the Police and Criminal Evidence Act but to the rules in those Acts.
The amendments to Clause 18 make it clear that, in respect of a DNA profile, the responsible chief officer is the one whose force took the original sample rather than the one in whose force area the forensic science laboratory is located, while Amendment 14 to Clause 21 removes the definition of the phrase “law enforcement authority”, which is not used elsewhere in that clause.
Finally, I take this opportunity to give notice to the House that we are considering whether it would be helpful to clarify further the scope of the regime for the retention and destruction of material under Section 18 of the Counter-Terrorism Act 2008. If we conclude that further clarification would be helpful, I propose to bring forward further amendments to Schedule 1 to the Bill at Third Reading. Naturally, I will give noble Lords proper notice of any such amendments, should they prove to be necessary.
I should have said at the beginning that, in moving Amendment 7, I was speaking also to Amendments 8, 9, 10, 11, 12, 13 and 14.
Lord Rosser
My Lords, I thank the noble Baroness for that explanation of the reasoning behind these amendments. I want to raise a question about a particular part of the amendment rather than to make any point in opposition to the amendments.
The amendments in this group appear to require the application to be made before a district judge in the magistrates’ court. Will the noble Baroness confirm what appears to be the case; namely, that an application could not be made before lay magistrates in the same court? I may be wrong, but if that assumption is right, will the Minister say why this is the case on this issue, since it does not relate, for example, to terrorist activity or threats to national security? As I understand it, the issue simply concerns the case for retention. Is it because there is an existing statute that already provides for this approach? Is it because it is considered that such applications will normally involve complex issues of law? Is it envisaged that such applications will normally be lengthy hearings lasting more than one day? Is it because lay magistrates do not want this responsibility? Is it a lack of confidence in lay magistrates? Or does the reference to “district judge” include lay magistrates? That may possibly be the explanation.
Will the Minister also say whether there is a district judge sitting at every magistrates’ court at which such an application might most conveniently be made; whether it is envisaged that a district judge will hear such applications on occasions outside court sitting hours, away from the court; and what will happen if the district judge who is down to hear the application is off sick on the day fixed for the hearing and, as is often the case, no other district judge is sitting at that magistrates’ court? Will the date for hearing the application have to be rearranged, or in those circumstances would arrangements be made for the application to be heard by a Bench of lay magistrates already sitting that day at the court in question? To cover myself, perhaps I should declare that I am a lay magistrate—but I am not asking these questions in order to tout for additional business.
Baroness Stowell of Beeston
My Lords, I will speak briefly on one aspect of the amendment that might be of interest to the noble Lord, in the hope that further advice might wing its way to me. It may be that the specification of a district judge might relate to the fact that the application by the police in the first instance would be ex parte. That may be why the application needs to be made to a district judge rather than to a lay magistrate. I can now confirm that the application will be only to a district judge, not to a lay magistrate, because it is an exception to a general principle requiring discretion, and is not to be used routinely. If no district judge is available, the application could be heard by a circuit judge if one is available. If after that explanation the noble Lord feels that I have not answered all his questions, I will follow up in writing.
“(2A) Sections 63D to 63T do not apply to material to which paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 (requirement to destroy material) applies.
(2B) Sections 63D to 63T do not apply to material to which paragraph 6 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011 (requirement to destroy material) applies.”
“(5A) The responsible chief officer of police may apply to a relevant court for an order to retain a sample to which this paragraph applies beyond the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5) if—
(a) the sample was taken from a person detained under section 41 in connection with the investigation of a qualifying offence, and(b) the responsible chief officer of police considers that the condition in sub-paragraph (5B) is met.(5B) The condition is that, having regard to the nature and complexity of other material that is evidence in relation to the offence, the sample is likely to be needed in any proceedings for the offence for the purposes of—
(a) disclosure to, or use by, a defendant, or(b) responding to any challenge by a defendant in respect of the admissibility of material that is evidence on which the prosecution proposes to rely.(5C) An application under sub-paragraph (5A) must be made before the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5).
(5D) If, on an application made by the responsible chief officer of police under sub-paragraph (5A), the relevant court is satisfied that the condition in sub-paragraph (5B) is met, it may make an order under this sub-paragraph which—
(a) allows the sample to be retained for a period of 12 months beginning with the date on which the sample would otherwise be required to be destroyed by virtue of sub-paragraph (4) or (5), and(b) may be renewed (on one or more occasions) for a further period of not more than 12 months from the end of the period when the order would otherwise cease to have effect.(5E) An application for an order under sub-paragraph (5D) (other than an application for renewal)—
(a) may be made without notice of the application having been given to the person from whom the sample was taken, and(b) may be heard and determined in private in the absence of that person.(5F) In Scotland, an application for an order under sub-paragraph (5D) (including an application for renewal) is to be made by summary application.
(5G) A sample retained by virtue of an order under sub-paragraph (5D) must not be used other than for the purposes of any proceedings for the offence in connection with which the sample was taken.
(5H) A sample that ceases to be retained by virtue of an order under sub-paragraph (5D) must be destroyed.”
Baroness Hamwee
My Lords, Amendment 15 deals with membership of the National DNA Database Strategy Board. In Committee, I moved an amendment requiring rules about the composition of the board to be included as part of the governance arrangements. The Minister reassured me that the Government's rules would include full membership of the board. She said that an independent element in the form of representation from the Information Commissioner's Office and the National DNA Database Ethics Group would be included. She also said that she would be happy to receive suggestions to strengthen the independent element. This is such a suggestion.
My point in that debate and now is that an independent element need not be, and possibly should not be, a member of the board in a representative capacity. Noble Lords will all have experience of boards to which independent members bring exactly that: independence. They come as individuals with not only independence but judgment, experience of the wider world and so on. If they are representatives of other organisations, they have a rather different role to play. My reason for moving the amendment again is not just to respond to the invitation issued in Committee but to ask the Government to bear this in mind and not exclude the desirability of having true independence involved in the governance of the board. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend for her explanation in moving her amendment. The first thing I will make clear to her is that we are not averse to including on the National DNA Database Strategy Board someone who is wholly independent in the sense that they have no direct or indirect interest in this field and, as such, can exercise a role akin to that of a non-executive director, as my noble friend explained and illustrated. All I can do at this time is restate what I said in Committee: namely, as she acknowledged, that the governance rules that must be published under the new Section 63AB(6) of PACE will include the full membership of the board, and that membership will continue to include an independent element in the form of representation from the Information Commissioner's Office, the National DNA Database Ethics Group and the Forensic Science Regulator. We do not consider it necessary to specify the membership of the board in the Bill or at this time to specify what my right honourable friend the Home Secretary might include in the governance when it is decided and published, but I am sure that in reviewing the membership of the board she will consider the points that have been made by my noble friend. I think she will want to ensure that we are not so specific in those governance rules that they prevent us changing any of the independent elements of the membership of that board in future, when different organisations might be associated with DNA.
I hope that my explanations have given my noble friend the assurance she needs that we understand the importance of an independent element in the board and that we want to retain flexibility for the future in the make-up of the board. However, we will certainly take into account the points she has made.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Campbell-Savours, for moving this amendment. I have been provided with speaking notes to address some of the points that he has raised but, before I get to them, it occurs to me that perhaps he is raising two different issues here. I speak as someone who worked at the BBC for nine years. Following the noble Lord’s praise for Sky, I do not know whether this will mean that I attract criticism from him, but, as I say, I think that there are two separate matters here.
One is about documentaries or docusoaps, in which broadcasters follow police services and, in the course of filming or making the programmes, they capture footage on film of people doing things that are against the law. In those circumstances, the broadcasters tend to pixelate the images when they are played out. The broadcasters of that kind of imagery clearly have to comply with Ofcom’s broadcasting code and ensure that they do not broadcast images that might jeopardise any legal process that the police service might want to pursue in apprehending the person whom they have filmed. There is a separate issue that the noble Lord spoke more to in moving the amendment. It covers situations where news organisations, including the BBC, Sky, ITV and many others, broadcast CCTV footage that has been released to them by the police, usually in order for them to report on criminal activity and to broadcast the fact of that activity to the general public. In responding to the noble Lord, I will focus my comments on the second category of images rather than the first.
I start by saying that I wholeheartedly agree with the noble Lord that CCTV systems and images are an important investigative tool for the police. There is little point in investing in such systems if the police and others cannot make full use of the images when investigating offences captured on CCTV systems and prosecuting offenders. Where a suspect has yet to be identified and there is reason to believe that the release of CCTV footage will aid the police investigation of a crime and secure justice for the victim, our general approach is that we support images being made available to the public. There will be some cases where this may not be appropriate. However, the BBC programme “Crimewatch” is a great example of where CCTV footage of crimes has been broadcast and, as a result, the public have been able to provide vital information to the police.
We must be alive to the fact that at an early stage of an investigation, before anyone has been arrested for an alleged offence, any CCTV images would at best identify only one or more alleged offenders or wholly innocent persons. We need to be sensitive to such considerations, particularly where the persons visible on any CCTV footage appear to be under 18 and are therefore afforded particular protection within the criminal justice system. The position is different once a person has been arrested for an offence. In those circumstances, the Contempt of Court Act 1981 is engaged. This means that from the time of their arrest, a suspect is afforded a degree of protection in order to ensure that as the accused they have a fair trial.
All these considerations argue for a degree of constraint on the media in publishing personal details of suspects at the pre-charge stage. This is consistent with guidance issued by the Association of Chief Police Officers that sets out the limited circumstances in which police officers might divulge to the media the personal details of those suspected of, but not yet charged with, an offence. The ACPO guidance sets out the principles in this area, including the legal tests of necessity and proportionality, to help police forces make decisions about the release of images of suspects and defendants to the media.
I am grateful to the noble Lord for raising the issue. It is clearly relevant to the provisions of the Bill, given that one of our objectives is to promote the effective use of CCTV systems. As I said, it must be right that the police should be able to exploit CCTV images as part of their investigation of an offence. If the publication of such images has a role to play in helping identify suspects, the police should not be inhibited from placing them in the public domain. In doing so, they must have proper regard to their duties under data protection legislation and to the need to protect the rights of the accused, and they must have particular regard to the position of children. I hope that, having sparked the debate and listened to my responses, the noble Lord will withdraw his amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend. I was grateful to her for taking my call earlier today to discuss her amendment. Since speaking to her this afternoon and rereading the notes and advice that I have had on this amendment, I hope I can provide her with more assurance than I indicated earlier, but I will not prejudge that.
As I made clear in Committee, I fully share my noble friend’s concerns about the impact that intrusive noise can have, particularly when it comes from neighbouring properties. I share her concerns that in many cases noise monitoring would already fall outside the RIPA regime because there is not an expectation of privacy. However, in some cases it is possible that noise monitoring amounts to an intrusion of an individual’s expectations of privacy. In such cases it is right that steps are taken to ensure that any monitoring is both necessary and proportionate. The whole point of the RIPA safeguards of necessity and proportionality is that there needs to be an assessment on a case-by-case basis that takes into account the individual facts of the case.
RIPA ensures that public authority surveillance activity meets its obligations under Article 8 of the European Convention on Human Rights. Without a RIPA authorisation, a public authority that exceeds the bounds or intrudes quite significantly is at risk of an ECHR challenge. However, I share my noble friend’s view that many noise abatement investigations do not engage any private information and are therefore outside the scope of RIPA. I gave a few examples when we debated this issue in Committee; for example, the monitoring of loud music, alarms or machinery; if someone is having a row and it is causing inconvenience to other people they cannot be in a position to believe that that is private. There are occasions when obtaining a RIPA authorisation for noise abatement would clearly be superseded by the need for immediate action—for example, by the police—because the intervention is for a public order incident.
Home Office officials have been discussing these matters with members of the Chartered Institute of Environmental Health, Defra and London Councils. We have said that we cannot create a general exclusion for any noise abatement measurement or monitoring, especially if the steps taken to investigate it infringe privacy rights. However, I hope I can provide my noble friend with the assurance that she is seeking by saying that we will look again at the RIPA code of practice on surveillance to see whether we can make it clearer that in the circumstances that I have outlined—that is, where no private information is engaged or a where a person would normally be regarded as having forfeited any claim to privacy—a RIPA authorisation is unlikely to be required. I hope that that is sufficient to persuade my noble friend to withdraw her amendment.
Protection of Freedoms Bill
Baroness Stowell of Beeston Excerpts(12 years, 4 months ago)
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Lord Rosser
My Lords, my noble friend Lord Wills has set out the objectives of the amendment, which seek to improve the delivery of a transparent and open system of government through the previous Government’s groundbreaking Freedom of Information Act. They are in line with the Government’s own pledge to improve and extend the drive for greater transparency. The Freedom of Information Act provided a mechanism for the Government to extend the scope of the Act, as my noble friend has already explained. By placing a duty on the Government to report annually on their activities to maintain or extend transparency through further designation of public authorities and on public authorities to report on their efforts to comply with the Act, the amendment will create a driver that will strengthen and adhere to the principles and purpose of the Act. I very much hope that we will hear a positive response from the Minister to the amendment.
Baroness Stowell of Beeston
My Lords, as my noble friend has already made clear this afternoon the Government are very committed to greater transparency and to making sure that the Freedom of Information Act introduced by the previous Administration operates as effectively as possible. That is behind our commitment to introduce post-legislative scrutiny of the Freedom of Information Act, which is now under way and being carried out by the Justice Select Committee.
As the noble Lord, Lord Wills, explained, Amendment 151B would place a duty on the Secretary of State to publish an annual report detailing the Government’s actions in relation to Section 5 of the Freedom of Information Act, which enables the Act to be extended to bodies performing functions of a public nature or providers of public services under contract. Amendment 151D proposes that public authorities are required to publish annual reports containing prescribed classes of information about their compliance with the Freedom of Information Act and environmental information regulations.
In relation to Amendment 151B, I fully appreciate the need for transparency in relation to the Government’s exercise of the power in Section 5 of the Freedom of Information Act. The Government are, and will continue to be transparent in this area. We have given advance notice of planned consultations under Section 5 and, of course, any order made under that section is subject to the affirmative procedure. We see no practical benefit in introducing a requirement to publish an annual report. I also agree with the sentiment behind the noble Lord’s Amendment 151D regarding the transparency of freedom of information activity. Public authorities should be accountable for their performance in respect of freedom of information requests and actions. However, I am not persuaded of the case for introducing a statutory requirement to publish an annual report along the lines proposed here. We need to be alert to the resource implications before placing any new burdens on public authorities. That said, I recognise that the transparency of freedom of information performance across the public sector is also something to which Parliament may wish to return, as I have already said, in the post-legislative scrutiny that is now under way. While I sympathise with the sentiments behind the amendment, in light of the fact that that post-legislative scrutiny will provide a forum for such proposals to be properly considered in the round, I hope that he will feel able to withdraw his amendment.
Lord Wills
I am grateful to the Minister for her gracious and largely positive response, although I am slightly baffled as to why the Government have not seized on these simple amendments. This would be an easy thing for them to do. When in the future I stand up, as I will probably feel obliged to, to berate them for their slow progress in extending transparency, they would be able to hold it up and say, “Look, we’ve done this already”. I say with all respect to the Minister that the announcement about the consultation on Section 5 came quite late in the Government’s lifetime, after many occasions on which I and others had had to badger them about their lack of progress on it. It is not a regular occurrence—the amendment would make it obligatory for that sort of transparency to be provided only annually, so I am slightly baffled as to why the Minister has not seized on this offering more gladly than she has. However, I am grateful for her positive words and I will, of course, withdraw the amendment. I hope that she and the Government will understand that it is important that post-legislative scrutiny should not be used as an excuse to delay all action on this indefinitely. They will be held to account on their pledge to extend transparency and, the sooner they deliver on it, the better for the health of our democracy. For the time being, though, I am happy to beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Wills, for introducing and explaining his amendment, and also for the supplementary comments from the noble Lord, Lord Rosser.
I am not going to apologise for the fact that this Government are carrying out post-legislative scrutiny of the Freedom of Information Act and that I will refer to it on several occasions during the course of these debates. Such scrutiny is a very important and proper way of looking at existing legislation to see whether it is working effectively and operating as intended and for looking at ways in which it can be improved in the round. As a new Member of your Lordships’ House, on many occasions over the past year I have heard references to the need for post-legislative scrutiny and how that would be an important part of any legislation that passes through Parliament. Therefore, we should see as a good thing the fact that we have that mechanism in place for this Act and that it is happening at this time.
The noble Lord, Lord Wills has explained his amendments effectively, so there is no need for me to repeat any of what he said. However, as he said, these two amendments are similar to those he tabled during the passage of the Localism Bill through this House. I am sorry that the noble Lord does not feel that his concerns were adequately addressed on that occasion. As he says, my noble friend Lord McNally stressed during the debates on the Localism Bill the Government’s commitment to the Freedom of Information Act and described some of the measures that we are taking to extend its scope. For example, as the noble Lord is aware, the Bill includes a provision to extend the scope of the Act to companies wholly owned by two or more public authorities. We have also made an order under Section 5 of the Act extending its scope to, among others, the Association of Chief Police Officers. In addition, we are currently consulting more than 200 further bodies about their possible inclusion, and we intend to extend this consultation to more than 2,000 housing associations later this year.
Our continued opposition to the proposals within these amendments does not stem from any lack of commitment to the cause of transparency. As my noble friend stressed last year, it is important that we ensure that changes to the ways in which public services are delivered do not undermine our pledge to increase openness and accountability. I absolutely share the point made by the noble Lord about that.
This issue is already being considered as part of the Government’s response to the Cabinet Office consultation on a draft transparency and open data strategy, which is due to be published early this year. It is also an issue which the Justice Select Committee may wish to consider during its post-legislative scrutiny of the Act. It is, of course, open to noble Lords—I am sure the noble Lord, Lord Wills, with his experience and expertise in this matter will do so—to make representations to the committee as part of its work.
More generally, it is important that we assess carefully the likely impact of any change against the benefits that it will bring. This is to ensure that transparency is both maintained and enhanced but with due regard to any burdens that might be imposed. For example, under Amendment 151C, it would be problematic for both contractors and public authorities to comply with freedom of information requests for contract information. Public authorities would need to have access to any information held by the contractor that is potentially relevant in responding to the request. Such a requirement to share all such information with the public authority so that it could comply with freedom of information requests could adversely affect the effective delivery of that contract. In particular, it might, for example, provide the public authority with commercially sensitive information on other matters to which the authority would not—or, arguably, should not—have access.
In addition, Amendment 152A, for example, which seeks to make all companies more than 50 per cent owned by the public sector subject to the Act, would increase the risk of activities not relating to the public sector being made subject to the Act given the varied interests that these bodies might have. The noble Lord made reference to that argument before, but it is a very compelling argument. If there is a strong argument for including a specific body in relation to the specific things that it does, this is better achieved through other means, such as an order made under Section 5 of the FOI Act. However, as I have indicated, we are already extending the scope of the Act to all companies that are wholly owned by any number of public authorities, as provided for in Clause 101 of the Bill.
Amendment 152A relates solely to the local government sector. As my noble friend Lord McNally explained to the House at the Report stage of the Localism Bill, it would not be appropriate, as is proposed in the amendment, simply to amend the Freedom of Information Act in relation to bodies that have entered into contracts with local government. In addition, although I do not think that this argument was deployed by my noble friend during the passage of that Bill, in preparing myself for today’s debate it seemed to me that the proposal could act as a disincentive to competition among contractors. That is another argument and reason why we should not necessarily go down this route.
To conclude, I would like to reiterate to the noble Lord, Lord Wills, that our opposition to his proposals stems not from an aversion to increased transparency but from our desire to ensure that effective and proportionate solutions are developed. I hope, therefore, that the noble Lord will feel able to withdraw his amendment.
Lord Wills
My Lords, I am grateful to the Minister for her broadly constructive, helpful and typically gracious response. However, I say to her that she does not have to persuade me, as I am genuinely trying to be helpful. When I was a Member of Parliament, 75 per cent of my casework—I dealt with about 1,200 different cases every month—was complaints about Swindon Borough Council. What most people really want to know about is what their local authority is doing for them. At some point in the future, unless the Minister makes good on the warm words that we have just heard from her and brings back under the scope of the Act those local authority functions that are being given out to private contractors, every MP on the Government’s side will be battered by complaints from their constituents, who will ask, “Why can we not find out more information about this work, which our money is paying for—work that is being done on our behalf—because of the result of legislation that you have passed?”. That is the current situation.
I would be very happy to give way to the Minister. If she is going to reassure me, I will be delighted.
Baroness Stowell of Beeston
I simply point out to the noble Lord that my understanding is that, although a local authority may contract out a service to a provider, the local authority is still accountable for the delivery of that service. Therefore, any individual should be able to request—using the Freedom of Information Act if necessary, or through correspondence with their local MP—the information that they need to be able to satisfy themselves that what they pay for through their local taxes is actually providing the service that they expect and that they deserve to receive.
Lord Wills
I am grateful to the Minister for what is a very valiant attempt, if I may say so. I will not detain the House at length, as I am about to withdraw the amendment. However, if she refers to the column in Hansard where I originally raised this point, during the passage of the Localism Bill, she will see that that is not quite the case. There are many instances where services have gone to private contractors that people just cannot find out about. For example, on the issue of parking tickets, many people are very suspicious about the way that private ticket companies operate. People suspect that the ticketing is a revenue-raising operation rather than an attempt to ensure that the traffic can move safely and securely through town. When people want to find out about that, they cannot do so because private sector companies are not covered by the Act. As I say, the Minister does not have to persuade me, but all the Members of Parliament in the other place will be besieged by constituents in the years to come unless this Government make good on their pledge to get this information back into the public domain. There will be a heavy price to pay—that is all that I can say.
For the record, I am afraid that I am not persuaded by her arguments, for what it is worth. Of course post-legislative scrutiny is a good thing, and the Minister is quite right to bang the drum about that. I support the Government on that, but they have ignored their own good practice in this case by removing such matters from the Act in having already taken a piecemeal decision about this.
However, I remain willing to be persuaded about the Government’s good intentions. I believe that the Government want to extend transparency, but I make the point—I tried to make this point to the noble Lord, Lord McNally, as well—that open data is an admirable project, on which the Government are doing great work. That work was begun by the previous Government, and I support this Government in the way that they are taking it forward so vigorously. That is a great thing, but it is different from freedom of information. There is one crucial difference. As regards open data, it is for the Government to decide what data they release. They have been open and are pushing the transparency agenda vigorously—all credit to them for that—but the Government decide on that matter. As regards freedom of information, the citizen decides what information he wants. It is bottom up as opposed to top down. They complement one another and they should be working together, but they are different. That is not an adequate excuse in my view.
However, I have detained the Committee long enough and, for the time being, I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have spoken in this debate. I agree that any person guilty of an offence of altering or destroying information that has been requested under the Freedom of Information Act should be prosecuted, and they should not be able to evade prosecution because the Information Commissioner has been unable to consider the case within six months of such an offence occurring. I am aware that the Scottish Government have recently launched a public consultation exercise which, in part, asks for views on whether to lengthen the time limit for bringing prosecutions under the equivalent provision in the Freedom of Information (Scotland) Act, from six to 12 months. I am also aware that the current time limit applicable to Section 77 of the UK Act has been the subject of some comment by the Commons Science and Technology Committee in its reports into the events, which have already been mentioned today, at the University of East Anglia.
The noble Lord, Lord Rosser, made reference to evidence given to a committee in September by the Information Commissioner. In the Government’s response to the Commons Science and Technology Committee last year in May, we stated that we would work with the Information Commissioner’s Office to determine the extent to which perceived difficulties with the current six-month time limit for initiating prosecutions stand up to scrutiny. To date, there is a lack of concrete evidence to demonstrate that prosecutions have not been brought as a result of the existing arrangements. However, because the Government share the concerns expressed by noble Lords today, should evidence emerge of a widespread and genuine problem, consideration will be given to the most appropriate means of remedying this issue. I am sure that the noble Lord, Lord Wills, will not be surprised to hear me say that this issue might be one that could be looked at as part of post-legislative scrutiny.
The noble Lord, Lord Rosser, made reference to the Information Commissioner’s evidence in September last year. That is something that I was not specifically aware of, but I understand that we are in discussions with the Information Commissioner’s Office. It may be that measures similar to those proposed by the noble Lord, Lord Wills, would be the most appropriate way of responding to conclusive evidence in favour of change, should that emerge. Certainly, the solution proposed in Amendment 151J to lengthen the period from six months from the commission of an offence to three years, but within six months of the prosecuting authority being furnished with relevant evidence, is commonly used when a longer timescale for bringing a prosecution is justified. However, we would need to consider what was most appropriate to ensure the right measures were put in place. I am sympathetic to what he is saying, but the Government are not in a position to commit to it.
Amendment 151K seeks to address the issue in another way, that is, by making the Section 77 offence triable either way. The six-month time limit for bringing a prosecution of course applies only to summary offences. I take it that the noble Lord envisages that the maximum penalty for the offence, when it is tried on indictment, should be an unlimited fine. We need to bear in mind that Clause 79 of the Legal Aid, Sentencing and Punishment of Offenders Bill removes the limits on fines of £5,000 or more on conviction by the magistrates’ court. That being the case, it may be more efficient to continue to try these offences in the magistrates’ court.
Both the time limit and the maximum penalty are issues that the Justice Select Committee may wish to consider during the post-legislative scrutiny of the Freedom of Information Act. I hope that on the basis of what I have been able to say today, the noble Lord will feel it possible to withdraw his amendment.
Lord Wills
I am very grateful to the Minister and I am reassured by her response. I shall, of course, withdraw the amendment, but could I ask her to do something? She rightly said that there has to be a need for compelling evidence—or concrete evidence, I think, was the expression that she used. Could she contact the Information Commissioner and ask him to produce the evidence that he has to that effect and the problems that he has encountered and why he thinks it is a problem? Perhaps if I tabled these amendments again on Report she could tell the House what the response has been, what evidence there is or whether there is any evidence. With that, I am happy to withdraw the amendment.
Baroness Royall of Blaisdon
My Lords, these amendments merely seek to ensure that the process operates as quickly and as efficiently as possible by providing a duty on public authorities to expedite requests through the relevant processes as quickly as possible and within a certain period of time. I believe that they are entirely reasonable and are a matter of enhanced transparency and good governance. My noble friend is right when he says that they could also help to resolve some of the deeper problems that we discussed earlier. Therefore, I very much hope that the Government will support these reasonable, clear and sensible amendments which would ensure that the system worked better in favour of public accountability—which is, after all, what the FOI Act was designed to serve.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Wills, for explaining his amendments so clearly. I will not attempt to summarise them and take up the Committee’s time unnecessarily. I agree with the sentiment behind the noble Lord’s amendments in relation to the timeliness of public interest deliberations and internal reviews, which tally with the Information Commissioner’s best practice guidance.
The Government are firmly in favour of public authorities answering requests and internal reviews as quickly as possible. It is not acceptable that they should drag their heels in responding, and any extension to the time limit for responding to FOI requests should be claimed only where absolutely necessary.
The introduction of new statutory deadlines is certainly one potential way of strengthening the Freedom of Information Act, providing that it does not lead to hasty decisions that are not fully informed. Having an absolute limit of 40 days, even in the most complex cases, must raise some concerns about the potential for such an effect. Accordingly, careful consideration of the impact of such changes would be necessary before their introduction, and for that reason I cannot accept these amendments today. However, as I have said when we discussed other amendments, this might form part of the Justice Select Committee’s post-legislative review.
The noble Lord referred to his experiences as Freedom of Information Minister. I would never claim to have held any such senior position anywhere. However, I spent nine years working in the corporate end of the BBC and saw the internal conflicts that sometimes arose between the editorial part of the organisation using the FOI Act to obtain information and its corporate end having to be subject to the same Act. I am aware of the very careful deliberations that are necessary when an information request comes in and the complexities involved in that. It is sometimes necessary to take a bit of time to get to the point where the right decision can be made on releasing information. That said, in that public authority it was my experience that as the organisation got used to the FOI Act, it got quicker at dealing with the requests, the appeals, the internal reviews and so on.
Baroness Stowell of Beeston
My Lords, I want first to congratulate the noble Lord, Lord Soley, on his staying power this afternoon. Beyond myself and my noble friend he is one of the few Members who has been with us throughout the proceedings and it has been very nice to see him here.
On his amendment, I recognise the difficulties that can be encountered when attempting to establish land ownership and recognise the noble Lord’s intentions in seeking to address this point. The way in which he has described the problems is very clear and compelling. However, this amendment would go well beyond the intentions of the Freedom of Information Act. It is not intended to require public authorities to carry out detailed, time-consuming and potentially disproportionately expensive research for information they do not hold.
However, where a request for information made under Section 16 of the Freedom of Information Act requires a public authority to provide a reasonable degree of advice and assistance to applicants this would, where information is not held, include advice about how they might obtain answers to their questions from other sources themselves. In terms of process, this strikes the right sort of balance between the need to use increasingly limited resources sensibly and assisting the public where possible. However, as the noble Lord has identified, the problem he has expressed today goes way beyond this and is currently—it sounds simple from the way he has described it—almost impossible to solve through any route available to anybody at this time.
I was interested in his suggestion of pursuing this problem through a Select Committee route and exploring it because it sounds as if it is a significant issue that requires proper consideration in isolation and separate from this legislation. In respect of the Land Registry, the proposal in his amendment to require an authority to go further than provide the information it has via the FOI Act which receives a report would not just catch the Land Registry, but any other body with an interest in land ownership. I am not sure that was the noble Lord’s intention. I feel that he has raised an important issue. It is certainly useful for us to be aware of it and certainly in the presence of officials from the Ministry of Justice who are considering FOI. I think it goes wider than that and I would be more inclined to support the noble Lord in his effort to pursue this through a Select Committee than to do it through this Bill. On that basis, I invite him to withdraw his amendment.
Lord Soley
My Lords, I am very grateful to the Minister for that reply, for the constructive way in which she has addressed the issue and for her interest—I think that was the word that she used—in my proposal that the matter should go to a Select Committee. I can assure her that the report of this Committee’s proceedings will be brought to the attention both of the clerks to those committees—I have not quite worked out which would be the best committee and, actually, it might be best dealt with by a Joint Committee—and of the chairs of those committees, one of whom I have already spoken to.
I will also draw the issue to the attention of the Land Registry, which I think needs to think about what sort of answers we might need on this. I accept the Minister’s point that the issue goes much wider and I recognise that only a small part of it could come within the scope of the Bill. What I am struggling with is finding a way in which Parliament can address the issue to resolve the problems that confront people and that are, in many cases, very immediate for them. As I said, I could have referred to a number of cases that have been brought to my attention, and I am sure that there are many other such cases around the country.
I am grateful for the Minister’s comments and happily beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, I shall also speak to the other amendments in the group. This final group contains various minor amendments, a number of which are consequential on other government amendments agreed during the Committee of the whole House. I will be happy to provide further details if necessary, but subject to that, I beg to move.
Protection of Freedoms Bill
Baroness Stowell of Beeston Excerpts(12 years, 5 months ago)
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Baroness Hamwee
I do speak for myself. I hope Amendment 124, at any rate in the drafting, is a little more straightforward. I declare an interest as one of a number of vice presidents of the Chartered Institute of Environmental Health, from which this amendment comes. The amendment is concerned with environmental health and, in particular, with noise.
There has been, I understand, a long-running issue as to whether the investigation of noise nuisance requires covert surveillance. It is not the Home Office but in fact Defra which has mainly been concerned with this. Environmental health officers listen to noise in its context and record, one of the technical terms, anything listened to which brings—as I understand it since it is as the institute understands it—what it does within the meaning of Section 26(9) of RIPA. The Home Office takes the view that dealing with noise nuisance does not ordinarily require covert surveillance and so it is not caught by RIPA. Perhaps this amendment covers it if and when it does. Therefore this amendment is a probing one. The institute is generally in support of the need for judicial authorisation but so far as its work is concerned in this area there are some difficulties.
As this has been long running, it is able to anticipate the arguments that may be made against the need for such an amendment so I am going to start with the response and then its response to each of the Home Office’s likely responses. The first is that surveillance follows complaints so quickly that obtaining authorisation would not be reasonably practicable and that this excuses the need for authorisation. The institute says that the exception is when surveillance is undertaken as an “immediate response”, such as when a police officer sights a suspect in the street. There is always going to be a delay between the making of the noise complaint and its investigation. Secondly, if local authorities warn noise perpetrators that they may be monitored surveillance following that will not be covert and so will not be caught by RIPA.
Giving a warning causes delay. It rather undermines the duty on local authorities under the Environmental Protection Act to investigate complaints and quite obviously it would tend to be self-defeating. I dare say many noble Lords will have experienced complaint in different contexts to noise or what they may perceive as noise. I perceive muzak as noise. I have often asked for it to be turned down. It is turned down temporarily in a place of entertainment and up it goes again. Thirdly, if local authorities warn noise perpetrators that they may be monitored, again surveillance will not be covert and so not caught. I beg your pardon. I should have said that giving a warning takes the investigation out of RIPA and the measurement of sound pressure levels does not require authorisation. But there is no numerical standard for noise nuisance because environmental health officers have to judge the noise in context. Depending on what else is going on, the noise may or may not be intrusive, and for evidential purposes it is accepted practice to record it.
Fourthly, private information is unlikely to be obtained because perpetrators have no right of privacy to information that is audible outside the premises it is coming from. However, the institute draws attention to the definition in RIPA of “private information” by reference to its content as distinct from its audibility. Fifthly, surveillance carried out without authorisation is not necessarily unlawful. That is the case where there is an equivalent process of authorisation in another statute, but that does not apply in this case. Lastly, the whole thrust of this part of the Bill is the protection of magistrates’ approval against unjustified snooping by local authorities, and both I and the institute have sympathy with that. The Home Office has confirmed in Answer to a parliamentary Question in another place that there is no evidence to suggest that noise investigations are being carried out inappropriately by local authorities. We have read of instances where local authorities have rather overstepped the mark in their use of the powers, but this is not one of those examples.
In the hope that I have not taken too much of the Minister’s speech in anticipation of the answer, I beg to move.
Baroness Stowell of Beeston
My Lords, I thank my noble friend for her introduction to the amendment, and indeed she has anticipated quite a lot of what I will say in response. None the less, there are some things that are worth emphasising, and I hope that in doing so I can give her some assurances. I certainly agree that noise nuisance is something that is clearly intolerable to the person experiencing it and that in many instances the noise under investigation may occur at night, so anyone who is subject to that kind of disturbance feels strongly about the situation they find themselves in and wants any action to deal with it to be rapid. However, Amendment 124 is unnecessary because the sort of noise we are talking about, that which causes disturbance and affects people’s lives, is not caught by RIPA.
Before I go on to cover some of the topics raised by my noble friend, let me say that Home Office officials have already met representatives of the Chartered Institute of Environmental Health and of Defra to discuss these points. We have said that we shall work with them on revising the RIPA code of practice on covert surveillance in order to make it clear that authorisation under RIPA is unlikely to be necessary for noise abatement reasons. Surveillance conducted and governed under RIPA relates to private information only. It requires that when public authorities obtain private information covertly, they do so only when it is necessary and proportionate, in line with our right to privacy. However, the privacy implications of someone making a loud noise will usually be such that RIPA is not engaged. Loud machinery, alarms or music, for instance, are not private information, and if the noise emanating from someone’s house because of, say, an argument is so loud that it can be heard in the street outside or the adjoining property, it is highly questionable whether the people concerned have a realistic expectation of privacy. If the noise involves violent or threatening behaviour, then it would always be appropriate to call for the police.
If the council’s policy is to serve an abatement notice warning that monitoring may be carried out, then that monitoring cannot be deemed to be covert in nature, which my noble friend has already anticipated. In these scenarios, a RIPA authorisation would not be required. This is made clear in the RIPA covert surveillance code of practice; that code has statutory force.
The only instance where a RIPA authorisation definitely would be required is where a local authority noise monitoring device was calibrated to boost the signal so as to record conversations which could not be heard outside the property with the naked ear. However, this would constitute intrusive surveillance and RIPA does not permit local authorities to do this. Most people would agree that this would be an unwarranted breach of someone’s privacy. I therefore maintain that local authority noise monitoring would not normally require to be authorised under RIPA; that this is already made clear in RIPA; and that it therefore would not be subject to prior magistrate approval. However, as I say, we are meeting with the Chartered Institute of Environmental Health and Defra to look at the code of practice. Before I ask my noble friend to consider withdrawing her amendment, I wish to reinforce the Government’s view that noise disturbance of the kind she describes is an important matter. However, I do not think that her amendment is necessary.
Baroness Stowell of Beeston
My Lords, I will endeavour to respond as comprehensively as I can to the issues raised in this short debate. I appreciate the concerns raised by the Bar Council but your Lordships will understand that no one can regard themselves as beyond the law or immune from investigation or prosecution. Nevertheless, RIPA recognises the special relationship between a lawyer and client, and puts in place special protections for any covert obtaining of material subject to legal and professional privilege.
RIPA already limits obtaining legally privileged material to intelligence and law enforcement agencies investigating serious crime or acting in the interests of national security. In each case, whether it is interception or surveillance, internal authorisation is by senior official—for instance, the director-general of the Security Service or a chief constable. In addition, and crucially, this is then subject to external independent approval, either by the Secretary of State or a surveillance commissioner, before any covert action can be taken.
The RIPA codes of practice, which have statutory force, provide further safeguards. The interception code makes it clear that where communications which include legally privileged communications have been intercepted and retained, or where the subject of the interception is to be a lawyer, the matter should be reported to the Interception of Communications Commissioner during his inspections and the material be made available to him, if requested.
In addition to safeguards governing the handling and retention of intercept material as provided for in Section 15 of the Act, caseworkers who examine intercepted communications should be alert to any intercept material which may be subject to legal privilege. Where there is doubt as to whether the communications are subject to legal privilege, advice should be sought from a legal adviser within the intercepting agency. Similar advice should also be sought where there is doubt over whether communications are not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The covert surveillance and covert human intelligence source codes make it clear that such independent external approvals will be granted only where there are exceptional and compelling circumstances that make the authorisation necessary—for instance, where there is a threat to life or limb or to national security.
My noble friend Lady Hamwee and the noble Lord, Lord Rosser, have already made reference to the McE case. In 2009, the former Judicial Committee of your Lordships’ House ruled in that case that RIPA could be used to authorise the covert surveillance of legally privileged consultations but that this needed to be subject to an enhanced approval process. The enhanced RIPA safeguards were tested in the case of RA v Chief Constable of the Police Service of Northern Ireland where the High Court of Northern Ireland ruled that the RIPA regime was lawful and provided sufficient safeguards against abuse. To be clear, those new safeguards have been tested in a court of law and were found to be robust.
In reference to the comments made by the noble and learned Lord, Lord Scott, about the amendment put forward by my noble friend Lady Hamwee, I will of course leave my noble friend to respond to him. Given these existing stringent limitations and safeguards on public authorities obtaining legally privileged material under RIPA, and the fact they have been tested in court, as I have said, and have been found to be robust, I would suggest to my noble friend that this amendment is unnecessary and I invite her to withdraw it.
Baroness Hamwee
My Lords, this being Grand Committee, of course I will withdraw the amendment. The noble Baroness’s reference to the role of the commissioner and some other comments seem to be steps taken to deal with the issue after the horse has bolted. But I will read her comments carefully. The point that no one is immune from prosecution is not something with which I seek to argue. It is a parallel but different point.
The noble and learned Lord, Lord Scott, make a very interesting point about regulations made by the Secretary of State. I did not mean to disclaim responsibility for drafting the amendment; I meant to give credit to others. But I did not draft it and I do not think that it would be right for me to attempt to respond in any detail at this point. The noble and learned Lord set me an interesting dilemma and I shall think about it after today’s Committee Sitting to consider how one might address it.
I do not believe that the Bar Council would have gone to the effort of dealing with a matter about which the current Lord Chief Justice has himself expressed disquiet had it felt that an amendment was not necessary, so I will be talking to the council between now and the next stage. Other noble Lords have asked if there might be a meeting to discuss a number of issues, and this is one that will be particularly amenable to some further discussion, if that is possible. I do want to imply anything as regards the noble Baroness, but for myself this is pretty much above my pay grade. I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, we are still on powers of entry. This is a small, technical group of government amendments to Clauses 45 and 47 and Schedule 9 to ensure that the Secretary of State’s order and code-making powers in the powers of entry provisions and the new order-making power inserted into the Regulation of Investigatory Powers Act—RIPA, as we have called it this afternoon—may make provision in respect of a transferred matter in relation to Northern Ireland, where such a provision is ancillary to reserved or excepted matters. These are similar to amendments already made to Schedule 1 during Committee of the whole House. I beg to move.
( ) Subject to this,”
Baroness Stowell of Beeston
My Lords, these amendments give effect to a recommendation made by the Delegated Powers and Regulatory Reform Committee. As the noble and learned Lord, Lord Scott of Foscote, is still here, I hope this amendment will find favour with him at least. The committee argued that there may be considerable interest in the first order to be made under Clause 51(5), setting out those relevant persons required to have regard to the code of practice for powers of entry. In view of this, the committee recommended that the first such order should be subject to the affirmative procedure. The Government are content to accept this recommendation and these amendments make the necessary changes to the Bill, including to the parallel order-making power, exercisable by the Welsh Ministers in Schedule 3. I beg to move.
“( ) If a draft of an instrument containing the first order under subsection (5) would, apart from this subsection, be treated as a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.”
( ) Subject to this,”
Baroness Stowell of Beeston
My Lords, the Committee will be aware that the Government made a remedial order—the Terrorism Act 2000 (Remedial) Order 2011—earlier this year to replace the stop and search powers in Sections 44 to 47 of the Terrorism Act 2000 with a more targeted and proportionate power. That order will cease to have effect when, subject to parliamentary approval, Clause 61 of the Bill comes into effect.
The Joint Committee on Human Rights issued two reports on the Terrorism Act 2000 (Remedial) Order 2011. It recommended in both reports that the Bill should be amended to clarify that a senior police officer making an authorisation in respect of the new stop and search powers must have a reasonable basis for not only their suspicion that an act of terrorism will take place but also their view that the authorisation is necessary and proportionate to prevent such an act. The Parliamentary Under-Secretary for Crime and Security responded to the Joint Committee’s second report stating that he would consider whether the Bill should be amended. I can confirm today that the Government accept the Committee’s recommendation, which is implemented by this amendment.
I should stress that Amendment 146 is without prejudice to the construction of “considers” elsewhere in the Terrorism Act 2000. In the particular context of this provision in the Bill, we are merely emphasising—in response to the Joint Committee’s report—the implicit meaning that consideration must be reasonable so that the intended meaning is clear to all, including the courts. We feel this clarification may be helpful given the contrast between “reasonably suspects” in the first part of the test for authorisation and “reasonably considers” in the second.
The amendment to Schedule 6 makes a parallel change to the stop and search powers in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007, as amended by that schedule. I beg to move.
Baroness Royall of Blaisdon
My Lords, we welcome the Bill’s provisions in relation to stop and search in general. We also welcome the amendment before us today. Stop and search is an important police tool and was introduced for a very good reason in response to the changing security environment. However, as actions this summer have shown, community cohesion and the effectiveness of policing depend on public confidence. We know, for example, from the interim report of the Independent Riots, Communities and Victims Panel, that stop and search was cited as a major source of discontent with the police. This discontent and concern was widely felt by young black and Asian men specifically. It is absolutely right and proper that this government amendment introduces the concept of reasonableness. I wholeheartedly support the Government in their amendment.