Protection of Freedoms Bill

Debate between Lord Henley and Lord Selsdon

Monday 12th March 2012 Lords Chamber

[The Minister of State, Home Office (Lord Henley)]

My Lords, I will try to keep my response to the point of the original amendment moved by my noble friend Lord Selsdon, tempted although I am to proceed down routes raised by the noble Earl about procedure of the House and littering, which are matters for another occasion, but I will try also to respond to a couple of the points made by my noble friend about powers of entry, because he gave me notice of them.

My noble friend has returned to an issue that he raised in Committee, and I apologise for not getting back to him on it, about the use of covert surveillance by non-governmental organisations or private individuals. In Committee, I said that I would look further at that issue. We have given that matter serious consideration, but we have concluded that amending the provisions of the Regulation of Investigatory Powers Act as they apply to public authorities is not the answer to protect landowners from trespassers or people who do damage on private land. I could go on, but I just want to make it clear that I do not think that what my noble friend suggests in the amendment would be appropriate for this Bill at this stage.

My noble friend then raised the point about powers of entry and asked when the code of practice will be available. We intend to consult on a draft powers of entry code of practice in the summer with a view to its coming into force in the autumn. I will certainly ensure that my noble friend receives a copy of the draft code when that goes out to consultation and look forward to his comments on that in due course.

My noble friend then asked for a list of all the powers of entry. He originally asked for that to be in the Bill—I have explained on a number of occasions why that is not appropriate—but has since asked whether it could be made available in the Library or somewhere else. I have made it clear to my noble friend on a number of occasions that it will be available on the Home Office website. My noble friend is worried that most noble Lords—I think he said 50 per cent of them—cannot access the Home Office website to get hold of such things. In practical terms, for a department to make such things available on its website is normally the best way. If any noble Lords have any problems in accessing that, they can always get assistance from the House authorities—in particular, the Library, which works wonders in providing noble Lords with access to such things.

We have published a list of all the powers of entry that we have identified. We are committed to keeping it up to date. We will continue to keep it up to date on our website. I will certainly consider whether it could be made available on one occasion in the Library, but thereafter, it is best that it is kept up to date on the Home Office website, and my noble friend can then get further copies either through the website, if he can access it, or through the Library. I hope that, with those explanations, my noble friend will feel able to withdraw his amendment.

[Lord Selsdon]

I am most grateful to my noble friend for that, but, as he knows me well by now, he would obviously have expected me to have consulted the Library before speaking. The Library would like to have a hard copy because, as we know, some of the equipment in the Library does not work regularly. There is a shortage of wi-fi throughout the Palace. I hope that he will at least consider printing something out and putting it there. I pay tribute to my noble friend for dealing with such a complex Bill. If I had my way, it would be in three or four parts; it is an enormous Bill to absorb. From the research that I have done outside, it is extraordinarily confusing to what we might call lay people. They are not sure what it is about. It seems in a strange way to restrict freedoms. I am very happy to have been able to raise this issue, and I beg leave to withdraw my amendment.

Protection of Freedoms Bill

Debate between Lord Henley and Lord Selsdon

Thursday 15th December 2011 Grand Committee

[Lord Henley]

My Lords, when I referred to the gateway that we talked about, I sought to say that what we are committed to do in the Home Office is to check any new powers as they come in from other departments to make sure that they can be justified before they are introduced. It is easy to introduce something without much further thought, but we are trying to create a form of approach that will allow for a greater degree of caution and care to be used before such powers are introduced.

[Lord Selsdon]

I am most grateful to the Minister, and maybe the time has come once again to offer the help of the private sector in solving the problem. My two extra amendments take into account the points he raised with me. The preparation of the list means not just the issuing of it but also its availability to people at the right time. I have arranged with Professor Richard Stone at the University of Lincoln, who is rewriting the powers of entry, search and seizure with the Oxford University Press, to co-operate fully, as we have before, with the Government. We might see whether we can arrange a powers-of-entry cloud. This would mean that it would be available on my iPad, on which even now I have the whole of the Home Office Bill along with the updates that the officials themselves have not yet had. I do not know why they use yellow on their website because it is not a good colour. If these things are readily available online and in the Library—

[Lord Henley]

Perhaps my noble friend will give way. He, like me, is wearing a yellow tie, and he is also wearing a yellow shirt. Perhaps it is a good coalition colour to be wearing on an occasion like this. No doubt the Home Office works in the same spirit.

[Lord Selsdon]

It was part of the coalition activities. This is an area that will not go away. What I am trying to say to the Minister and his team is that there are a lot of people out there who would be willing to help. There are methods of presentation and of access, but not least there is the interpretation. Although I will not read it out today, I refer noble Lords to Lord Hailsham—my noble friend Lord Marlesford may have mentioned that—because this issue was raised by Lord Hailsham 56 or more years ago. It is an important one. Of course I will not press the amendment now, but I will arrange to meet my noble friend and see what I can do to help him and his Bill team. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Henley]

I take the noble and learned Lord’s point. He has not actually got an amendment down on this at the moment so we have not been thinking about that precisely but certainly we would consider having a look at that if the noble and learned Lord wants to come back to it on Report. I can see that Clause 40(2)(d) is where he wants the “shall” to come in.

The very simple point I am making is that not all powers of entry can be treated the same. Some powers of entry relate to the investigation of criminal offences or to a breach of regulation, but others do not. I would argue that it would be counter-productive in this instance, and indeed might prove unworkable in the case of powers of entry derived from European legislation, to seek to overlay a blanket requirement along the lines proposed in these amendments.

That is not to say that these types of safeguard do not have a place, and that is why we support the wider use of warrants whenever powers of entry are exercised. We also support the principle of consent in most cases—although obviously there are cases where consent would not be appropriate—and the removal of a power to enter people’s homes unless it is fully justified and accompanied by a magistrate’s warrant. I am trying to indicate that we need to consider the most appropriate approach on a case by case basis, and I think that Clause 40 allows us to do just that. The list of possible safeguards set out in subsection (2) includes a large number set out in paragraphs (a) to (k). These include a requirement for judicial authorisation and a requirement to give notice of the exercise of a power of entry and so on. I could read through the entire list. We consider that a targeted approach appears to be the preferable course of action on this occasion. The safeguards that apply best in most cases are specific to the type of investigation or inspection required and to the legislation conferring particular powers of entry.

I do not know if my noble friend Lord Selsdon wants me to go on to deal with his amendment or whether he is going to speak to it.

[Lord Selsdon]

I should like to say a few words about it at this point.

[Lord Henley]

I shall therefore give way. I thought that it was part of this grouping. However, my noble friend has not yet spoken so I shall listen to him.

[Lord Selsdon]

I shall speak simply on the matter of the code of conduct. The noble and learned Lord, Lord Scott of Foscote, pointed out that my amendment had certain faults in it because it should have said “either/or” and not all at once. What one had done before in discussion was to determine which factors should go into the code of conduct. My noble friend the Minister has rightly said that he will produce a very reasonable one. However, a difficulty is that each of the different pieces of primary and secondary legislation requires different consideration. For example, in the first 12 Bills listed on the Home Office website, there are 36 powers of entry relating to animals. They need a different method of handling when you enter a property. I want just to point out that I am on the same side as the Minister with regard to codes of practice or codes of conduct, but the noble and learned Lord pointed out that I should have put in “either/or” instead of the whole lot. That was my own typographical error.

[Lord Henley]

I am grateful to my noble friend for that explanation. I could not accept his code of conduct, but he will see what we have set out in Clauses 47, 48, 49, 50, 51 and even down to Clause 53 which sets out a corresponding code in relation to Welsh devolved powers of entry. It might be that my noble friend wants to have further discussions about that. However, what we have set out in terms of being able to alter or replace the code should be sufficiently wide and able to deal with difficult matters such as a code of conduct in relation either to animals or to other matters. On glancing through my noble friend’s code, I thought that it was what might be described as over-prescriptive. It is better to leave it to the route that we are setting out in the Bill.

Protection of Freedoms Bill

Debate between Lord Henley and Lord Selsdon

Tuesday 13th December 2011 Grand Committee

[Lord Henley]

I cannot at this stage remember precisely what the LGA’s response was. However, I can assure the noble Baroness—who, with her local government background, is presumably a distinguished former member of the LGA—that we will certainly want to listen to its views as we get that code of practice sorted out. The Secretary of State must prepare it, as set out in Clause 29. We want to make sure that it is appropriately, proportionately, transparently and effectively designed to ensure that the right approach is taken in dealing with these things and we get—dare I say it again—the balance exactly right. I believe that there is consensus that further regulation is necessary. However, there is also consensus that there should be no further delay in this matter.

I object to the amendment, although I am grateful to the noble Lord for tabling it because it is useful to discuss the code, because we want to move ahead with getting that code of practice right. We will consult not just the LGA on that but a great many other bodies. However, having the inquiry, as suggested by the noble Lord’s amendment, would not achieve much. It might be that other inquiries will take place later but, for the moment, we want to get the code right and that is exactly what we will do. I hope the noble Lord will feel able to withdraw his amendment.

[Lord Selsdon]

Maybe my noble friend could help me with something. I have asked previously how many cameras are registered. The answer was that all cameras should be registered with the Information Commissioner. I then asked how many cameras are registered with the Information Commissioner and the answer was none. Presumably my noble friend will be introducing a new form of commissioner who will register certain cameras. Could he perhaps explain the difference between the new system and what was meant to be the old system?

--- Later in debate ---

[Lord Selsdon]

My Lords, I shall speak to Amendment 126 and the other amendments. I support my noble friend Lady Miller. This subject is, unfortunately, one of my hobbies. I am totally opposed to people entering other people’s property without permission or court orders and I am totally opposed to this form of surveillance, even if it is called observation. I declare an interest as former secretary of the Parliamentary Space Committee; I am involved in space and privy to certain information about advanced technology that makes me even more nervous.

RIPA was a great idea when it started—like most things with initials that you cannot remember—but, even when it is amended, I will be concerned about public bodies and, in particular, covert activities. However, public bodies can get round the safeguards that are there by accepting evidence gathered by non-public bodies. That leads us to the fear that in these sorts of covert operations a public body, all in good faith, may find that it has an opportunity to obtain from a third party information that may be offered to it, not necessarily by a hacker but by some person who finds that he has something of value that could be sold. The amendment proposed is that one should not be able to use that information in prosecutions.

I will not go too far on this but we know that the listening devices that are around are extremely sophisticated and can be programmed from many miles away. Aerial surveillance is also possible from satellites in real time—not the Google thing of showing a picture of your house from above but information that can be picked up.

The purpose of Amendment 126 is to introduce a safety clause. I think that the Minister may be prepared to accept it. Once amended by the Protection of Freedoms Bill, public bodies will be able to get round the safeguards by accepting evidence gathered by non-public bodies using covert surveillance that could not have been authorised by the public body itself. This may mean that the public body, in good faith, is offered information or materials that could be helpful in pursuing its course by a private sector or non-public body. The question is therefore whether the public body has any responsibility for this and for the information provided. The suggestion here is that if freedoms are to be protected the loophole must be closed and it must not be acceptable for information to be gathered covertly without proper authorisation and used for prosecution. That means that the public body must take responsibility for any information that may be gathered and its name must be linked to it. Thus any information that is gathered that the public body has not itself authorised or been associated with should be excluded from any efforts of prosecution.

We know that many examples of this are being pushed around at present. The amendment is relatively simple; it says that anything that is done in the name of a public body, or is misused in the public body’s name, must be the responsibility of the public body, which should be responsible for making sure that everything is in order.

[Lord Henley]

My Lords, just to make sure that I get things right, I should make it clear that it is my understanding from the intervention from the Deputy Chairman of Committees that we are dealing with Amendments 115 and 120 to 128, but not with those in the name of my noble friend Lord Phillips, which start at Amendment 116, those being a separate group.