Psychoactive Substances Bill [HL]
Lord Lucas Excerpts(8 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Mackay of Clashfern
My Lords, the “other” must be implied and I see no reason why it should not be expressed. I think the amendment carries itself fairly easily.
Lord Lucas (Con)
My Lords, I do not like having a law which states as a fact something which is clearly wrong. I hope my noble friend will therefore accept these amendments, in spirit if not in the exact letter.
Lord Deben (Con)
When my noble friend comes to do that, perhaps she will help me with the problem that I have got. I feel that “instrument” is probably not the right word, particularly when used with food. This is one of the ugliest bits of this ugly Bill, and any prettying up of this part would be very helpful.
Lord Lucas
My Lords, I thought that that was a superb explanation but I want to tax the Minister, if I might. There are many ordinary substances—glue being the obvious one, but there are a lot of other things such as spruce logs, which you can burn—which you can use in extremis in the absence of other things for psychoactive purposes. Usually, a supplier of these things would not have to ask themselves whether I intended to use the tube of UHU for psychoactive purposes. When this law is enforced, what rules will apply to a retailer when they are selling something? Most plastic packaging when burnt or heated will produce fumes with a psychoactive effect. What does the retailer have to do not to be reckless? If they think that I am someone who might do that sort of thing, does that qualify? If I sell something to someone, not particularly caring what they will use it for, and they go and kill themselves by using it for psychoactive purposes, am I going to be come after? What are the rules? What do I have to do as a retailer of perfectly ordinary things if there is a potential psychoactive use for them?
Lord Bates
My noble friend is correct in the sense that there are rules that exist relating to solvent abuse, the use of solvents in that regard and protections for retailers. However, we are very clear here as to the target audience for the purpose of this measure: individuals who are seeking to manufacture psychoactive substances for the purposes of being consumed by people for their psychoactive effect, or to supply, import or export. We do not believe that they will come into the categories of what would be appropriate retail activity. My noble friend makes a wider point, though. I will reflect again with officials on his remarks in the Official Report, and if I can expand upon that point to provide some additional guidance I will certainly write to him and copy it to other Members of the Committee.
Anti-social Behaviour, Crime and Policing Bill
Lord Lucas Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Hunt of Chesterton (Lab)
My Lords, the worrying thing about the remarks made by my noble friend Lady Smith is the idea that the police decide whether to prosecute on the basis of their chances of winning or losing some court case. That is extremely worrying. It means that the law as put into practice depends on someone’s estimate of whether the police should deal with somebody who might sue them, and who has a big enough legal budget to be able to do that. This seems to call into question the whole legal basis of the way we operate. I very much hope the Minister will explain the situation and say that decisions are not being taken according to the chances in the law court. That seems a complete negation of how we are supposed to operate our society.
Lord Lucas (Con)
My Lords, when my childhood friend murdered her husband, she did so with a kitchen knife. It has always been my impression that people who get into that sort of situation domestically use whatever weapon is to hand. I would be very interested if the Minister could provide some evidence as to whether people who hold firearms licences or shotgun licences—I hold both—are more or less likely to murder someone than people who do not hold such licences. Do we actually have a problem here, in the general sense? Looking at things in the round, are we being effective in issuing licences, as we ought to do, to people who are generally less likely to murder someone—or are they more likely to murder someone? What are the statistics for the country as a whole?
If, as I rather suspect, we find that people who are issued with such licences are generally much more law-abiding than the population as a whole, perhaps the amendment does not address a real problem. Or rather, it addresses not a problem that exists in the round, but a particular problem with how the police are assessing individual cases—when, perhaps, they have evidence that someone is not suitable, and are not taking action on that evidence.
It is difficult to see what, under subsection (2) of proposed new Section 28B of the Firearms Act, the police could do to get more evidence than they already have as to the suitability or unsuitability of someone to hold a shotgun licence. What is,
“substantiated evidence … of domestic violence, or drug or alcohol abuse”,
if not the records and evidence that the police already hold? Surely they are not going to go casting around for rumours, because such evidence would not be substantiated. It does not seem to me that one could mount a quasi-criminal investigation without any evidence of a crime, merely to see if one could entrap a rumour or two. I do not know what could be done under the amendment that, as the noble Earl, Lord Lytton, said, is not already being done as part of the process.
However, if there is a step in the process whereby the police have evidence but feel frightened to act on it—this seemed to be the idea emerging from the way in which the noble Baroness, Lady Smith of Basildon, addressed her amendment—perhaps we should take the action suggested. But first, as I said earlier, I would be interested to know whether we are dealing with a real problem, or whether this is something of a rarity.
Lord Hunt of Chesterton
My Lords, we have heard one story about a knife, but I have a good friend in America and his wife took a gun to him. It does happen with guns too.
Lord Lucas
But if one weapon were not to hand, do people not tend to use whatever is to hand? I suspect that we will find that people who own guns are rather less likely to murder people than those who do not.
Lord Harris of Haringey (Lab)
My Lords, we are in danger of having a slightly false debate on this subject. Let us start from the simple fact that firearms and shotguns are, very easily, potentially lethal weapons. What is more, they are lethal weapons that can operate at some distance. They are therefore dangerous items. It has been decided by Parliament, quite properly, that there should be a licensing regime—that checks should be applied to individuals who hold them.
The amendment is not about comparing the population of those who are licensed firearms holders with those who are not; it is about a very specific sub-category. This is not an amendment that will stop, or is intended to stop, armed robbers. It is not about people who start off with malign intent. It is about the nature of the checks, and how they should be used, in very restricted circumstances. It is about people who would set out to acquire a firearm not because they want to rob a bank, but probably for sporting purposes; that is, I assume, the reason why the noble Lords who hold such licences apply for them, and use firearms.
The amendment suggests that, as part of the checks, if there is a history of the individual concerned having been involved in incidents of,
“violent conduct, domestic violence, or drug or alcohol abuse”,
the presumption should be that that person will be denied a licence. This is not about the application of open discretion by police officers. It says that the presumption will be that that individual will not be allowed a weapon.
This is nothing to do with people who acquire weapons illegally, and nothing to do with people who are trying to acquire weapons for other purposes; it simply says that if people with that particular sort of history apply to legally hold a lethal firearm, the presumption should be that they will not be allowed to do that. I would have thought that was eminently sensible. I find it almost unthinkable that that is not the starting point that will be adopted in your Lordships’ House.
What is being proposed by this very carefully worded amendment is that, in those cases where there are prima facie reasons that people may lose control and not use the weapons for the purposes for which they have sought a firearms licence—for example, they may murder or attack their partner or be so inebriated or under the influence of drugs that they would use a firearm against another person—the presumption should be that they are not allowed a licence.
No doubt the noble Earl, Lord Lytton, and others will say, “Hang on, the chiefs of police have discretion in those cases”. However, the point that my noble friend Lady Smith of Basildon made was that, given that there is discretion and given the way in which it operates, that is not sufficient. By passing this amendment, we would give those chief police officers not just a discretion, as we would be saying, “The presumption is that you do not put a lethal firearm in the hands of somebody who has committed domestic violence or has a history of alcohol abuse or drug abuse”. Surely, that provision is sensible, is a safeguard and is something on which we can all agree.
Anti-social Behaviour, Crime and Policing Bill
Lord Lucas Excerpts(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lucas (Con)
My Lords, I share the noble Earl’s appreciation of the late Paul Goggins, in my case from when he was a very good Prisons Minister. I am equally sad to learn of his death.
In the context of these amendments I share his concerns that we should be looking at detention for, as it were, a first offence; for something which, as my noble friend Lady Hamwee pointed out, might not even be a criminal offence. If it is a criminal offence, of course, we do not need the detention powers in the first place. I look forward with interest to what my noble friend has to say. I hope that he has been allowed to be more helpful to my noble friend Lady Hamwee than he was on a previous amendment.
Baroness Smith of Basildon
My Lords, I thank the noble Earl, Lord Listowel, for his generous and kind comments, which we appreciate, for our former colleague Paul Goggins. He was an exceptional MP and, for those who knew him and were very fond him, he was an exceptional person as well. We are very sad to lose him.
On the amendments, rather along the lines of the issues raised by my noble friend Lord Harris of Haringey, perhaps I may ask some questions about dispersal orders. The extension of dispersal orders that the Government are proposing seems quite strange. Previously, dispersal orders were for 24 hours, with democratic oversight in consultation with the local authority, and covered a restrained geographical area. That has changed because under the Government’s proposals they are for 48 hours with a much wider geographical area. There is no involvement of the local authority but there is the involvement of a member of the police force of the rank of inspector or above.
The Minister will recall that we discussed in Committee the lack of clarity around the operation of dispersal orders. A number of questions were put to the Minister but we did not get answers then. Given this extension and the change in how the Government want dispersal orders to operate, it is a concern that the detention, particularly for young children, would remain for a much broader and wider offence about which we have had very little information, and I read the debate again today. It raises some questions for the Minister to answer. Why does he think that these dispersal orders are appropriate? Does he think it likely that, because of the wider area, the increased length of time and the fact that there is no democratic oversight, we shall see more dispersal orders? Is it appropriate in those cases that we may see more breaches of them?
It raises a concern that something as minor as a dispersal order, which can be issued by a police offer on the spur of the moment, when there is not really a process in the way we would expect, could lead to detention. The extension of how the Government are planning to use dispersal orders in the future, retaining detention for young people if there is a breach, gives rise to concern. Will the Minister explain why he thinks it appropriate, how he thinks it will be used and on how many occasions? I am concerned that we may see an increase in dispersal orders. I am very unhappy about the Government’s proposals in any case, but if we see an increase there could be an increased number of breaches and we could then see detention of young people. Will the Minister explain how this will operate and why he thinks it is appropriate?
Crime and Courts Bill [HL]
Lord Lucas Excerpts(11 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lucas
Lord Lucas
In moving Amendment 11A I shall speak also to the other amendments in my name in this group and, indeed, to one that does not appear in the groupings list, Amendment 17G, unless the list has been amended subsequently, as this amendment is clearly part of the same series.
I start by declaring an interest: I run the Good Schools Guide. It seems to me that the Good Schools Guide is clearly going to have register under these clauses. I am not going to address myself to the virtue or otherwise of this approach to press regulation—I am sure that others will do that better than I could. I am going to confine my remarks to, “Well, if the Government are going to do it this way, how could they do it better?”. As far as I understand it, the procedure today is that, as with the other groups, we will deal with everything as a whole. But if we get to the point where we are faced with a widespread disagreement with what the Government are doing and an unwillingness to listen, we have the option of re-debating each of the amendments one by one when we reach their place in the Marshalled List if the noble Lord whose amendment it is chooses to move it.
The crucial thing from my point of view is exactly what the Government intend to do with their manuscript amendment. I was comforted very much by what the noble Lord, Lord McNally, said—that this is essentially a device to make sure that the Commons has Easter to think through exactly how to deal with small bloggers and, given the width of the Commons’ powers, also to make any other necessary changes to these clauses. Therefore, if we are dealing with small amendments and things we think need further thought, that government amendment is enough to enable these to be achieved, and therefore all we need to do is speak to the Government today and, over the next three weeks, good sense will gradually percolate through and result in the Commons—when the Government’s amendment comes back to us—having taken the appropriate action elsewhere within this group. I hope that that is the correct understanding. I am sure that my noble friend will confirm if that is the case.
I start with Amendment 11A. I understand what my noble friend says about the purpose of the lines that I am seeking to take out—they are to deal with circumstances when the regulator has gone doolally—but I think that this is the wrong way to do that. I can see that as a possibility, but by doing it this way the Government are introducing uncertainty into the whole question of whether exemplary damages apply to a publisher. By joining a regulator, you can exempt yourself from exemplary damages. You sign up to the regulator, you do things its way and you are not in danger of exemplary damages. You do not have to get insurance against exemplary damages—which is not exactly going to be cheap—and you know that you have gone down the road that Leveson has recommended.
By introducing this uncertainty, saying that the courts can overturn your exemption, you are inviting every opportunist attacker to have a go at you, to see if he can tip you into exemplary damages. I cannot see that introducing that level of uncertainty, danger and risk in a procedure which is supposed to encourage people to sign up to avoid that risk, is the right way of doing it. If we are worried about the regulator going native then we need to provide for that in the charter and provide some way of bringing a regulator back to where they should be. Indeed, I suspect that if we had that then it might well be that Parliament would legislate again anyway. Surely this added uncertainty is not the right way to deal with the problem.
I turn to the next amendments in my group, Amendments 17C and 17G. The object of these paragraphs is effectively to force publishers to use arbitration. I have two objections to that. The first is that there ought to be a real incentive for those who offer the arbitration, for the regulator, to make it good and something that publishers want to use. If there is no such incentive then there is the tendency, as exemplified in Australia for instance, for the arbitrator to start to get really rather eccentric views on what publishers should be doing and to seek to widen its own authority by pushing the boundaries and the rules in ways which I am sure Parliament is not currently envisaging.
It seems to me best in principle that an arbitration, if that is offered, should be offered freely. I am sure that those like me who have had some experience of the uncertainties of the court will go for arbitration first as a matter of course if it is well done—and no reason why it should not be.
Secondly, however, there are many cases in the world of publishing that are seriously complicated things. They can be dealt with by arbitration but actually are far better dealt with by the courts. Surely we want to allow the decision to continue to be made by either side in the argument that a particular case would be better dealt with by a court, with the additional powers and procedures that courts have. I cannot see why we are effectively ruling that out by this particular pattern of penalties.
We come to my amendment to Amendment 18, which is to take out subsections (3) and (4). I think that I am proposing this amendment because I do not understand the wording of those clauses. I understood my noble friend when he addressed this and said that, clearly, he wanted to see the Huffington Post included as a publisher. But it seems to me that subsection (3) removes, at least if not the Huffington Post in the exact way that it operates, many Huffington Post-like potential publishers from the scope of “relevant publisher”. It says:
“A person who is the operator of a website is not to be taken as having editorial or equivalent responsibility for the decision to publish any material on the site, or for content of the material, if the person did not post the material on the site”—
in other words, if the material appeared on that site by another agency.
Well, fine; but suppose the publisher—whatever they be called; “Comment is free” would be a pretty good example—had offered payment to the person who posted that article on the website, or had commissioned it, or had merely given permission for it, as one has to with “Comment is free”. You cannot just post something on that site; you have to get its agreement to posting it. Effectively, in the likes of “Comment is free”, you are creating a newspaper, but it is not made up in the usual way; it is made up of unpaid—although there is no reason why they should not be paid—contributions from outsiders. They may well have been moderated, as is allowed in subsection (4), which effectively means edited. Permission has been given and sometimes contributions are sought, in that they might say, “We would like something like that—who shall we ask to make the posting?”. The wording of subsection (3), as it is now, allows some very major businesses to escape this set of clauses entirely. They may not exist at the moment but, if you allow them to exist under this clause, I think that they will get through. That may be my misunderstanding of how the wording operates, but it certainly seems the case to me.
Amendment 19A is my original take on how to deal with the small bloggers problem. Essentially, most publishers of any ambition are going to have to join this regulator, and my noble friend clearly expressed the intention of the Government and Lord Justice Leveson that this should be the case. But a lot of these publishers, particularly at the early stages of their existence, when they are pretty sharp-edged and contentious, do not have much income. They survive on the sheer effort of a few individuals, who may scrape a living through journalism elsewhere, or do something else to keep body and soul together, but are not earning a lot from the publishing enterprise that they have founded. If the regulator charges a large fee for annual membership or charges little bloggers full fees for access to the compulsory arbitration service, we are effectively creating quite a high barrier to entry for new publishers. We are saying that they will have to find £100,000 or £200,000 to deal with those charges before they are allowed to become a publisher.
I am sure that that is not the Government’s intention, but it is one of the reasons why their own amendment does not go far enough, and dealing with this issue is probably a matter for the charter and not for the Bill. But it is important to make sure that we are not in this Bill introducing a barrier to entry for new publishers, who will generally feel obliged to register. Unless there is a very clear moment when they transition from being a small blogger, in the words of the government amendment, to a not small blogger, they will register early for their own protection. But if they face the sort of fees that a vexatious litigant could use to really punish them, just by putting them through the procedures, we will put in place a real barrier. I am sure that my noble friend realises that there are people around the world with whom you can get into severe difficulty if you say what you think about them, such as the Scientologists. That is not an uncommon feature, and we should not create a barrier for entry into such controversial and, in the overall scheme of things, worthwhile activities.
My other amendments, Amendments 131B and following, are slightly further on. I am sure that this is my misreading, but it seems to me that there is nothing in the wording that exempts the New York Times, or Le Monde, from having to register. We are going back to our imperial habits and stretching our net across the world. They are certainly publishers of news on a large scale about the United Kingdom, but they are surely not intended to be caught and have to register just because they choose to report what is going on in these islands, on page 59. If that is the intention, I feel that it is the wrong one.
The second part of Amendment 131B is really a companion to the limitation of fees and costs for small publishers. If the regulator has to run at a loss on small publishers, subsidising their fees and arbitration costs out of the fees and costs charged to larger publishers, it may decide that it really cannot be bothered and say, “You’re not big enough yet—go away”. If the regulator says that to you at the moment, you are caught, because you cannot join the regulator and, therefore, you are in for exemplary damages, without the option. I do not think that that should be the case.
Lord Puttnam
Nothing in the world will delight me more than to see the Defamation Bill passed in its original form.
Lord Lucas
My noble friend has been suspended above his seat for a longer time than the Maharishi Yogi ever achieved. At risk of prolonging that, before my noble friend sits down, will he confirm, in order that he might get his supper this hour rather than next, that the matters that the noble Lord, Lord Stevenson, raised in his speech will be under active consideration in the Commons before this Bill returns to this House?
Lord McNally
I will look at what the noble Lord, Lord Stevenson, raised, but I warn the House against the idea that what is going back to the House of Commons is a reopening of these discussions. We have said what we want to see passed, we have asked noble Lords to withdraw. I have explained. I do not want to mislead the House. The Commons will be able to consider only their amendments that have been amended by this House. For example, if we do not today amend Commons Amendment 14, that amendment will no longer be in play during the next round of ping-pong. We are not sending the Bill back to the Commons for another go. Quite frankly, that would be extremely dangerous. My reply was carefully crafted by many hands far more expert than mine in a way that I hope gives the assurances that were sought in raising the amendments, not least those tabled by the noble Lord, Lord Skidelsky, However, the way that ping-pong works keeps the debate very tight and I do not want to mislead the House that it allows a rerun of negotiations on this. To even suggest that would be a bad mistake.
Lord Lucas
My Lords, I am very grateful to the Minister for all the time he has taken on my amendments. I would quarrel with him in his interpretation of how ping-pong works. I spent time talking to the clerks at this end and in another place before I put down my amendments, and my understanding is that the other place has very wide powers to suggest amendments in lieu; it is not restricted to individual amendments. The Government’s amendment on small bloggers will allow amendments to be made at any other position within this group of amendments. I may be misquoting the clerks—I am quite capable of that—but that was what entered my brain as a result of the conversations I had before I put down my amendments. In particular, I should be sad if the conversations that I started on my Amendment 18C were not to have any result.
My noble friend doubtless remembers what a difficult performance a three-legged race is on school sports day. He has had to indulge in a four-legged race today with his left leg tied to the Labour Party and his right leg tied to the Conservative Party, and he has been finding it extremely difficult. He has provided an excellent illustration of the problem, dealt with by my noble friend the Leader of the House at Questions today, of reading out a pre-prepared speech when what had been said was something completely different. I said in my address to Amendment 18C that I felt that the way in which the Government had drafted this clause would allow large news organisations to create structures that were in no way subject to the Bill. My noble friend did not address that at all in his reply, because it had been pre-prepared and did not allow him to reply to the remarks that I had made. I particularly feel that the Government have not understood the way in which the world is moving on the internet, and have not allowed for the sort of structures that seem to be arising even now, let alone those that will come.
I hope that the Government will take advantage of the freedom that I believe that they have to think through the wording and ensure that they are giving themselves the powers that they wish. To come back to what my noble friend Lord Black of Brentwood said, we are trying to achieve a regulator here that will be participated in, agreed and effective. I am sure that another look at the questions that I have raised with Amendment 11A would consider whether introducing uncertainties in this way in the position of someone who registers is really the best way of getting people to sign up. Other than that, however, I am grateful for the answers that my noble friend has given. I beg leave to withdraw my amendment.
Visas: Student Visa Policy
Lord Lucas Excerpts(11 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord MacGregor of Pulham Market
My Lords, I thank the many distinguished noble Lords who have put their names down to speak in this debate. There are several, such as my noble friend Lord Norton of Louth, who for good reasons are unable to be here but would like to have participated. That is a sign of the concern that there still is on this matter. The time pressure put on us means that I will have to be succinct on the issues and there is much that I will have to leave out.
There are three basic points with which to start. I strongly support the Government’s overall immigration policy. I entirely agree with the steps take to deal with abuse and bogus applications in parts of the private sector, the education sector and English language schools. Today we are talking solely about universities. I welcome the helpful steps that the Government have taken to alleviate some of the concerns expressed not least by five Select Committees in both Houses, and in particular the decision to disaggregate the student numbers in the migration figures. That was a big step in the right direction but we need to go further.
The achievements of our universities are one of the major UK success stories. Many are recognised world leaders, comparable to the best anywhere, especially in the United States. Overall our university sector has an internationally high reputation and the demand for places from overseas is strong. Non-EU overseas students contribute over 10% of total university fee income. The contribution to that reputation from overseas undergraduates, postgraduates, research fellows and professors working and studying here is great. The benefits that our universities bring to local economies are substantial, not only in their spending on local goods and services but also in their contribution to key economic developments. The huge growth in the science and research parks in Cambridge is just one outstanding example. The universities are a major expert earner, accounting for £8 billion now and with an expected to increase to £17 billion by 2025 on recent trends. They are the fifth biggest positive contributor to the net balance of payments.
The vast majority of overseas students are not permanent immigrants. They are migrants. The universities have excellent systems for tracking what happens to them. Most eventually return to their own countries or elsewhere. A 2010 Home Office study showed that of the individuals who entered as students in 2004, only 3% had settled permanently by 2009. They do not claim benefits. It is a condition of their visa that they have no recourse to public funds. They are net contributors to the economy and not a drain on public funds. They are unlikely to require NHS care because of their age profile. They are totally unlike bogus applicants and many other immigrants.
There are countless examples of them returning to their own or other countries and becoming permanent ambassadors for the UK. They are our best ambassadors when they leave our shores. They find prominent positions in government, foreign services and defence, industry and commerce, education and elsewhere. This is so-called soft power. In short, these are absolutely not the sort of immigrants that the public and the media have in mind when they call for tougher controls on immigration. They are the opposite, real assets to us, and that needs constantly and regularly to be made clear in the context of policy decisions. In so far as there has been public concern about students, this was related to bogus ones, and I hope that that problem has now been dealt with.
Overall figures of new entrants from non-EU countries are only slightly down in 2012, by 0.4%. Most overseas students are postgraduates and their numbers are down by 1.9%. Not much, one might say, but I suspect that this is only the start of a trend. First, in what is a hugely competitive industry, as many in this House know, numbers in most of our major competitor countries—America, Australia, Canada and some EU countries, which are fast developing courses in the English language —are up.
Secondly, some universities have told me that they found that last September the number of postgraduate applicants who had even paid deposits and then declined to come had increased. Thirdly, the perceptions that the UK was imposing tough new restrictions, being less welcome to new applicants and spouses, and even closing for business, have grown considerably since these figures were compiled. This goes particularly for the Indian subcontinent, where numbers are already substantially down and compensated for only by a rise in China.
Unless action is taken, future years will show a considerable decline in entrants. On the Indian subcontinent and, I am told, in some African countries, this perception has been especially evident as a result of the London Metropolitan issue. I do not have time to go into that in detail. Suffice it to say that the hostile publicity in India after that matter focused on the students who either had to or could not find other places—and it was huge. That, combined with individual stories about visa difficulties with the UK Border Agency, has been immensely damaging.
Fourthly—and this is difficult to explain in a few words, certainly to people outside this House—the claims sometimes made by Ministers that there are no limits on non-EU applications are simply not believed. This is due partly to the perceptions that I have already described, partly to difficulties with the UK Border Agency—of which, more in a moment—but perhaps most of all to the following point. In order to meet the Government’s target of reducing net migration to tens of thousands by 2015—and we are still a long way off that—and since students are the largest category of migrant, a further reduction in student numbers seems inevitable. The Migration Advisory Committee’s report states that a reduction in non-EU student numbers of 87,600 in the period 2012 to 2015 would be required to meet that target. The Institute for Public Policy Research has an estimate of 50,000 fewer non-EU students, translating to a loss to the UK of £2 billion to £3 billion per annum. These figures suggesting limits are becoming widely known and are fed by the perception of the way in which the UK Border Agency is applying its controls and rules to potential and already-in-place students from non-EU countries.
So what is to be done? I will be as brief as possible to enable as many speakers as possible to have a little bit more than the two minutes allowed. I have two points to put to my noble friend. First, it is clear that the UK Border Agency is overstretched, overbureaucratic and underresourced. Universities are highly responsible and want to clamp down on any bogus students and those who break the rules. I have talked to various vice-chancellors, seen the Universities UK submission and read the excellent article in the Daily Telegraph of 24 January by Sue Cameron, which accurately sums up the impressions that I have gained. The stories of unnecessary difficulties are legion. The UK Border Agency seems to be making students feel as unwelcome as it can. The amount of time, energy and costs that universities are having to use up is high, and all this is now being used by competitors in other countries to imply that the UK is closed for business.
I have a list of complaints and suggested improvements from Universities UK which I do not have time to repeat. Today, I shall mention just one or two of them. It makes the following points: that the UK Border Agency requirements of tier 4 sponsors have changed 16 times since 2009, making it incredibly difficult for sponsors to keep track of requirements; that changes have been made to visa requirements in the middle of the universities’ admission cycle, which has led to individual institutions having to review by hand thousands of offers already made to prospective students; that the UK Border Agency helpline is often unable to answer questions about changes to the rules; and—this is a particularly important point—that universities frequently tell Universities UK that they have received no feedback from the UK Border Agency following a tier 4 audit visit, either to inform them that they are compliant or to point out shortcomings or potential weaknesses. Many universities are making this point to Universities UK, and I hope that the Government will take it up.
Secondly, and most important of all in the light of all that I have said, I strongly support the recommendations of the five Lords and Commons Select Committees, including the Public Accounts Committee. It must be rare to have five committees from both Houses making the same points time and again. I am not sure that I can recall that ever happening before in my long period. It is important therefore that the Government take heed of what they have all said and remove international students from the net migration target. All five committees have powerfully argued the case. I quote from just one, the House of Commons Business, Innovation and Skills Committee, reporting in September 2012. It states:
“Whilst we understand that the UN definition of migration includes overseas students the Government is under no obligation to use that definition for the development of domestic policy”.
That is a fundamental point: it is perfectly reasonable to have the figures under the UN definition, but they should not be used for the development of domestic policy. The committee goes on:
“Removing overseas students from the Government’s migration targets would allow universities to compete on a level playing field with their international competitors”.
That is again an absolutely fundamental point. By changing the system, we would come into line with what happens in America, Australia and Canada, where they are making great appeals to overseas students. The report continues:
“It would also allow the Home Office to concentrate on economic migrants and their value to the United Kingdom”.
That is a point that I made earlier. The report goes on:
“We recommend that, for domestic policy purposes, overseas students should be recorded under a separate classification”—
we are moving, thank goodness, towards that—
“and”—
crucially—
“not be counted against the overall limit on net migration. That does not mean that we wish to hide the level of overseas students studying in the UK. The Government could make clear the distinction by publishing, alongside its net migration data, detailed information on the number of overseas students studying in the UK, their country of origin, the number who remain here after they have completed their studies and the number who remain in higher education”.
The committee then makes the following, terribly important point:
“Such an approach would make clear the difference between permanent immigration and study and crucially it would demonstrate clearly that the United Kingdom welcomes overseas students and values the contribution they make to our economy”.
I could not put it better myself. I stress again that such a change would bring our universities into line with the systems in our major competitor countries.
Yesterday, all five chairmen of the committees wrote to the Prime Minister on this point in view of his forthcoming visit to India, where the problem is most acute. I cannot recall an occasion on which the chairmen of five Commons and Lords committees have taken such action. I am sure that, on his visit, the Prime Minister will yet again powerfully and splendidly promote the cause of British exports. This change would be most timely and welcome in relation to one of Britain’s key export sectors.
At the Conservative Party conference in October 2011, the Prime Minister said:
“I want the best and brightest … scientists and students from around the world to get the red carpet treatment”.
I say amen to that. It is precisely what this change would do. My noble friend on the Front Bench has a deservedly high reputation in this House. I am sure that he will listen. I hope that, as a result of this debate, he will feel able to pursue both these points, on the UK Border Agency and on taking the migration statistics out of the target, with the relevant colleagues in government. If he can achieve progress on that front, it will be warmly welcomed by very many in this Chamber.
Lord Lucas
My Lords, may I point out that, on the mathematics of the speakers list that we have in front of us, we actually have three minutes each?
Lord Lucas
My Lords, we are one country. I hope that we all want some degree of immigration control and we all should want our universities to flourish and bring us wealth now and influence in the future. It is therefore extraordinary that we have ended up with two bits of our country working so diametrically against each other. Universities need the UKBA to be a partner in their marketing, to help them in the recruitment of students and to work with them. As we all know, we are seeing exactly the opposite. UKBA needs universities to help it in controlling immigration. As my noble friend Lord Phillips said, they are extremely unhelpful to the UKBA in doing so. They grouse and some of them really do not do what they should at all. The result has been a total breakdown in trust and in relationships. It meant that, when London Metropolitan University erred severely, the reaction of UKBA was completely irrational, except that there was no trust and no relationship on which to base a better reaction.
We need a fresh start. I know a lot of people are making an effort towards it, as I am—in a small way—along with the British Council and Imperial College. We had a very good meeting with the UKBA in December but things have now gone silent. I am sure my noble friend on the Front Bench knows what is happening. There is still lingering resentment and anger within the UKBA which is preventing these initiatives going forward. I very much hope that he will allow me a meeting with him and with the Minister to see if we can do something about that. Perhaps in many small ways we can build personal relationships by making small changes and experiments and by taking incentives. For universities like Imperial, that should be a gentle move towards something like a most trusted status. We need some way of removing the requirements of unnecessary immigration controls, just as they have been removed for independent schools. You do not find Imperial students wandering off to work as assistants in burger bars; they have far too much to do on their degrees.
There is a lot that can be done and I very much hope that my noble friend will help us do it.
Protection of Freedoms Bill
Lord Lucas Excerpts(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Earl of Erroll
I shall say a few words because I would have added my name to these amendments if I had been a bit more alert about them. I think they are very sensible. Of the two, I think Amendment 55ZB is probably the more important, although opportunities for delay are always a problem, so I think Amendment 55ZA is sensible.
In the atmosphere we are going into where there is an awful lot of rejigging of authorities and shared services and procurement, there are a lot of shenanigans going on behind the scenes with people trying to wheel contracts this way and that and shuffling them through different routes. The Government might find it quite useful to have some outside eyes keeping an eye on what is going on here and there, not to penetrate commercial secrets or commercial confidentiality, but sometimes some practices are going on that bear closer scrutiny.
I think this could go some way to help open up some areas and possibly to assuage unfounded suspicions. Sometimes people develop conspiracy theories in a completely unjustified way. A freedom of information request could expose the fact that the person is barking up completely the wrong tree, but sometimes it may be justified. I think it is very sensible to include this, or otherwise you will have a raft of things taken outside the Freedom of Information Act that are very useful for keeping an eye on what is really going on in the way that we are putting so much through various other sectors.
Lord Lucas
I quite agree that this is something we need to watch. We have similar problems in the health Bill where, for reasons I entirely approve of, activities that used to be done by state bodies may in future be done by private ones. We need to make sure that that does not mess up our objectives on freedom of information, which are, I believe, and certainly should be, towards greater access to information rather than less.
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.
Lord Lucas
My Lords, before I speak to my amendment in this group, may I first say that I hope my noble friend will treat the points raised by the noble Lord, Lord Sutherland of Houndwood, and my noble friend Lady Brinton with seriousness? It is clear that in an internationally competitive environment it is very important that people have confidence in the proper protection of research databases.
I disagree with both amendments. The amendment moved by the noble Lord, Lord Sutherland, would blow a hole below the waterline of this clause and would certainly destroy all my attempts to get other information out of universities. The amendment spoken to by the noble Baroness, Lady Brinton, misses important points on the other side. It is terribly important that data become available once results have been published. Many of these programmes go on for a long time. Because we intend to use the data in a whole series of publications over the next 20 years, we will never let them go. However, it must be possible for people outside a research group to criticise the results as they are being produced or false conclusions will be dropped into science and never properly got at. To pick one example, given by the noble Lord, Lord Sutherland, the inspiration of Crick and Watson had to be combined with the meticulous work of Franklin. Without that combination and the data being made public, the discovery would not have been made.
Lord Sutherland of Houndwood
On a point of order, it was information shared between research colleagues in two different institutions. In an atmosphere that is perhaps not quite as common today, it was willingly shared.
Lord Lucas
I understand and I remember from reading biographies that that was the case. None the less, the data were shared. To take an example from my time on the Front Bench as spokesman for agriculture during the problem of BSE, the Ministry of Agriculture, Fisheries and Food had been meticulously researching what was happening with this plague and had years of data. We had good people internally who were researching it. We did not know what was happening and we kept the data to ourselves. Three weeks after we released the data, we were told what was happening, which was transmission by food. That was right. Making data public, beyond a research group, is a very important thing to do at the right time. I should not like to see something in legislation that prevents that and allows people to hog data that should be public so that they can be properly criticised and understood.
My amendment is not on the same subject; it concerns technical bits of drafting in the same clause. I very much welcome the determination to provide greater access to data sets. It is something that I have struggled with, particularly with universities. All the universities that send me data stick copyright notices on them, which I studiously ignore. They have yet to sue me for it, probably because they have better things to do. Alternatively, I proposed as a remedy to one university that, if it insisted on its copyright notice, I would automatically generate an FOI exemption for every one of my users who wanted to access the data. The university thought that a number of 10,000 users a day was getting a bit large.
It is important that we understand that, when information is released under FOI, it can be passed on and made public; and that the generating institution does not retain some sort of control over it merely on a whim. I can understand why that might be the case if the material comprises something done under a publication scheme and is paid for, but otherwise it is very important that the information can be circulated whether in news media or in publications such as mine —the Good Schools Guide—or in many other applications.
I do not see why the proposals in the Bill do not go further and why they are restricted to data sets. It is common for all kinds of information released under FOI to be accompanied by a copyright. However, it is often obvious from the information that it has no conceivable commercial value to the public authority. A requester may have obtained a policy that he or she wants to publish on a website which demonstrates alleged shortcomings in an institution; for example, it may show that a decision has been taken without proper consideration of the consequences. The requester may want to write to Members of this House about the information that has been disclosed. Why should they be prevented from doing so by a copyright notice? It seems to me that the principles we are setting out in this clause should go further.
My second concern is about the definition of “data set”, which I believe is unjustifiably narrow. The Cabinet Office carried out an open data consultation which sets out admirably ambitious objectives for the greater use of data sets. Many collections of data currently gathered by public bodies which may be essential to revealing the inner workings of government do not seem to fall within the legal definition of a data set as set out in Clause 102(2). Any electronic collection of data which is the result of analysis or interpretation cannot be a data set because of new subsection (5)(b)(i) of the definition. The obligation to release it in reusable form will not apply to it, nor will the requirements to release it subject to the minimal restrictions embodied in a specific licence. The Information Commissioner will not be able to require that this collection of data must be published under an authority’s publication scheme. It seems that only raw data untouched by human hand are to be affected by this clause. That may suit people like me who spend their day with programs interpreting data, but most people want access to something which has been prepared for human consumption and has been set out in a way that members of a local authority are intended to understand rather than the geeks in their data department. I do not understand why the Government are seeking to exclude from this clause data which have been made human readable, as it were.
Paragraph (c) of the definition states that a data set remains one only so long as all or most of the information in it,
“remains presented in a way that (except for the purpose of forming part of the collection) has not been organised, adapted or otherwise materially altered since it was obtained”.
I am puzzled by that definition. A publication of data from a database may start off in the form of a spreadsheet consisting of three columns but is reorganised to consist of seven columns. Has enough been done to prevent the data set being published? How is anyone to know that? How is anyone to interpret that? How is any user to know that something is publishable? It seems to me that we are setting ourselves up for endless arguments. I am particularly concerned that authorities may find that, by reorganising data, they are able to conceal it from publication. It does not seem to me that that is the Government’s intention. I very much hope that they will explain to me their understanding of how this subsection may not be used in that way.
Protection of Freedoms Bill
Lord Lucas Excerpts(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Wills
My Lords, I support my noble friend Lady Hayter on this matter. I should declare an interest as someone who suffers fairly regularly from the kind of selfish behaviour that she so compellingly outlined. She set out the arguments so well that I do not intend to rehearse them again. I only ask the Minister to reflect on the sentiment of the House that, in dealing with the very real problems of clamping by private operators that it is widely accepted need to be dealt with, the Government do not create another set of problems. The risks that my noble friend outlined are real. I hope that the Minister in his reply can give the House some reassurance that the Government are going to tackle them.
Lord Lucas
My Lords, I am thoroughly in favour of Amendment 42, or at least the intention behind it. It is quite clear that the Bill as it stands will allow a continuation of current abuses in different forms. All you need is a couple of posts with a chain coiled next to one of them and you have a barrier that you can put whenever you want. Anyone caught within it might have to pay a large fine to be released. We will have the same people indulging in very much the same practices as at the moment but they will use a barrier rather than a clamp. Clearly this section is designed to exempt local authority car parks and others with a raised barrier and a ticket on entry. I entirely agree with that. However, it must be reworded, and Amendment 42 seems a pretty good way of doing it. It would be desirable to improve the arrangements in the Bill for appealing against unjustified tickets. I have no objection to the way in which the noble Baroness has set about doing it although I suspect she has taken on a hopeless cause when it comes to allowing more people to clamp. The Daily Mail will use that one, I suspect.
Earl Attlee
My Lords, we have already debated these issues at some length in Committee and I am grateful to noble Lords for taking time to meet with me and my officials since then to discuss these matters further. As the noble Baroness, Lady Hayter, has so expertly and temptingly set out, Amendment 42 seeks to allow the use of fixed barriers in certain circumstances and to specify certain conditions that must be met.
We consider the amendment to be unnecessary as Clause 54(3) already requires that there is express or implied consent by the driver of the vehicle to restricting its movement by parking where there is a fixed barrier. In practice this means that the existence of the barrier must have been apparent to the driver, either visibly or through clear signage, when they parked. Secondly, in order to establish a contract as a basis for payment, the terms for parking would have to be clearly displayed. Therefore, if the landholder demanded a fee for release of the vehicle without such a basis, he would be committing an offence under Clause 54(1). In answer to my noble friend Lord Lucas, I am convinced that we have drafted these provisions correctly.
Amendment 43 seeks to create a new power for the Secretary of State to grant lawful authority to clamp and tow vehicles to those who request it, with the expectation that applications would not be refused if made by local authorities, residents’ associations and community groups. Again, we consider the amendment to be unnecessary because there are existing powers for local authorities to take a controlling interest in the management of parking on private land with the agreement with the landholder.
Section 33(4)(b) of the Road Traffic Regulation Act 1984 states:
“A local authority may, on such terms as they think fit … arrange with any person for him to provide such a parking place on any land of which he is the owner or in which he has an interest”.
The phrase,
“provide such a parking place”
refers to a Section 32 parking place, which is the general power for local authorities to provide off-street parking places. As a result, the local authority could make provisions as to the conditions for the use of the parking places and manage and enforce those conditions under the Traffic Management Act 2004. This would enable local authorities to use their lawful authority to clamp or tow those vehicles that have contravened the terms and conditions for parking on that land.
The amendment would also introduce regulation of wheel clampers overseen by the Secretary of State who will also presumably be responsible for enforcement, rather than the Security Industry Authority or another body. The requirements set out in Amendment 43 could lead to a patchwork system of regulation in that each application made would have to set out how they meet the requirements, including in respect of an appeals process. However, the amendment does not provide for national standards which any local scheme must adhere to, so the amendment could lead to a system where wheel clamping schemes are different throughout the country. I am sure that is not the noble Baroness’s intention.
We have seen that following seven years of licensing by the Security Industry Authority, rogue wheel clampers continue to carry out their unscrupulous practices and we do not consider that further regulation of the industry will deter them, no matter how much the noble Baroness, Lady Hayter, deplores their activity. An outright ban on wheel clamping without lawful authority is the only way to deal with rogue wheel clampers. Wheel clamping and the towing away of vehicles by private individuals or businesses without lawful authority in order to force payment of a charge are unacceptable and should be prohibited. As well as causing motorists significant distress and anxiety, the clampers in effect hold the vehicle to ransom—or at least threaten to do so as a deterrent. No one can justify or defend the exorbitant release fees and intimidatory tactics employed.
Throughout our debates, many noble Lords have strongly made the point that clamping is a particularly effective deterrent to inconsiderate and unauthorised parking on private land. It may be, but is it also disproportionate. Supposing I was attempting to deter motorists from speeding: if I proposed that the police have the power to clamp an errant motorist’s car for a couple of hours without recourse to an independent tribunal, I expect your Lordships would have something to say.
There can be situations where, in the circumstances, the motorist who is clamped has acted reasonably. What about a midwife who is seeing a patient in a large block of flats and reasonably believes that permission to park has been granted? How can it be right to clamp his or her vehicle in such circumstances? One only has to ask what the knock-on effect could be. What about police operations? I spoke to a pal of mine who undertakes covert police duties, dealing with very serious matters. He said in an e-mail:
“I can speak from first-hand experience on this. On several occasions this happened to me whilst on duty on covert operations. On every occasion I had to park my police vehicle quickly and deploy on foot from the vehicle. The vehicle was always left in open parking spaces on private land and subsequently clamped. Whilst I cannot quote the figures, I know this happens on many occasions in similar circumstances”.
The fact is that a clamping company operative, no matter how well meaning, cannot possibly know whether what he is doing is reasonable. Therefore private clamping on private land is fundamentally flawed.
Turning to Amendments 44, 45—-
Lord Lucas
My Lords, why would it be any different for the policeman if a barrier had been placed across his car? He still would not have been able to use it. Why is that acceptable and a clamp not?
Earl Attlee
The noble Lord makes a very good point. The policeman would have to take that risk. However, he would be aware that he was taking the operational risk that his vehicle might be clamped.
I turn to the other amendments. As the noble Baroness, Lady Hayter, has explained, these amendments seek to provide an alternative dispute resolution mechanism. The Government would be required to prescribe and enforce the system, which would need to be funded by the industry. It is a bit odd that in this group of amendments the noble Baroness proposes retaining clamping without any effective means of appeal while in other amendments she is insisting on a system of appeal.
As indicated in previous debates, the Government are committed to providing an independent appeals service, which will cover all tickets issued on private land by members of an accredited trade association. In practice, this body will cover all ticketing by members of the British Parking Association’s approved operator scheme, who are the major private parking providers in the sector with accredited access to the DVLA keeper data, and will therefore be able to pursue vehicle keepers for unpaid parking charges after the measures in Schedule 4 come into force. However, we have made absolutely clear that we will not commence the keeper liability provisions in Schedule 4 until this independent appeals body is in place.
The amendments tabled in the name of the noble Baroness, Lady Hayter, propose much broader regulation covering all parking on private land which, we believe, would impose a not inconsiderable burden on smaller landowners, including those who wish to manage perhaps only a handful of parking spaces, or even one.
I fear that I am not in full agreement with the noble Baroness, Lady Hayter, regarding Scotland, where wheel-clamping has been banned since 1992. We have seen no convincing evidence that levels of rogue ticketing are a particular problem. However, we are not being complacent; we have given these amendments very careful consideration and, in this respect, I am particularly grateful to noble Lords who have taken the time to meet me to discuss the Government’s proposals. I have also had very helpful and informative meetings with the British Parking Association, Citizens Advice and Consumer Focus.
Some noble Lords raised the issue of Citizens Advice Scotland dealing with more than 1,500 parking inquiries, which represents a big increase on previous years. The figures need to be reviewed in the context of the number of parking tickets issued each year; I do not have the figures for Scotland to hand but, in England and Wales, local authorities issued over 4.2 million penalty charge notices for on-road contraventions alone in 2009-10.
Following discussions, we have agreed that part of our commitment to monitoring the impact of the provisions will be to continue to liaise closely with consumer protection groups to ensure that if rogue ticketing activity does occur such groups can feed back to us. If it becomes a significant problem, we will consider further measures, including wider regulation, if it proves necessary in the light of experience. I hope that that meets the needs of the noble Lord, Lord Wills.
As I have said, we have already established a new system for parking management companies—
Baroness Howe of Idlicote
My Lords, like the noble Baroness, Lady Brinton, I have also been involved with this committee, which has been looking in very great deal at this issue. As others have said, with the marvellous help of Laura Richards and Harry Fletcher, who have done a tremendous amount of work, we have listened to the most appalling stories. Again, as has been said, it is not just the individual whose life is ruined; it is often whole families who have to rush around the country trying to escape the persecution. As we also know, it is not just a question of trying to escape; there are murders and other terrible consequences. I, too, congratulate the noble Baroness, Lady Royall, on tabling the amendment. It is a good and very worth-while attempt not only to replicate the Scottish legislation—which, as we have all heard, has made good progress, and lessons are being learnt from it—but to make some additions, which we have worked on in our committee. Very sadly, it is probably not the right time to do so. We have a clash because the report that we have all been working on is published tomorrow, and it is very comprehensive. This makes, in my view, a strong case for a far more comprehensive piece of legislation.
That said, I commend the noble Baroness, Lady Royall, on later Amendments 49B and 49C in this group. They are an attempt, although I tend to agree probably not a practical one, to come to the right conclusion. We have, however, been told that Third Reading is not until March, so there might be some time to work on this report. If that is the case, we should gratefully look at that. Whether or not we will be able to accept it in its final stage, it would be an example of an updated piece of legislation that might in due course need further improvement but might be a step in the right direction.
I will mention cyberstalking briefly because it is a major and worrying area that needs dealing with. The perpetrator can not only continue to hound and haunt the victim in appalling ways but reinvent himself, pretend that he is the victim and spread all sorts of rumours. It is a very serious situation that we have ignored for far too long. One is almost surprised at how little attention has been paid to it. We should think back and not forget that domestic violence was regarded as something that was within the family and that the police should not get involved. How ridiculous that sounds in today's world.
Again, I congratulate the noble Baroness, Lady Royall, on what she is doing. I hope that we can make progress between now and Third Reading in the way I suggested, and then think again. I very much support what is being done.
Lord Lucas
My Lords, I very much look forward to reading the report tomorrow. I support the direction that the noble Baronesses have taken but I feel that Amendment 49A raises too many questions, particularly around the boundary of what is and is not acceptable conduct. For example, there is no requirement on A to behave reasonably, only on B. In subsection (5) of the proposed new clause we are getting close to the continental form of law where something is permitted only if it is allowed in legislation, whereas in the English form of law something is permitted if it is not forbidden in legislation. That requires careful consideration. I hope that the report of the noble Baroness will be the start of that process, and that my noble friend will be very supportive in his reply.
Lord Henley
My Lords, perhaps the House will welcome my intervention at this stage. I echo the words of the noble Baroness, Lady Howe, in saying that, surprisingly, I, too, commend the noble Baroness, Lady Royall, on tabling the amendments in this group. However, I have some doubts about their practicality and timing.
My first doubt is about their practicality. There are three amendments in the group. I am not sure in which order the noble Baroness would wish to see them on the statute book, or whether she wants to see them all on the statute book at the same time. Amendment 49A sets out in some detail what she proposes to do, although subsection (8) of the proposed new clause still gives the Secretary of State power by regulation to add further forms of conduct to subsection (6). The second amendment is a somewhat briefer attempt to do the same thing, which gives greater power to the Secretary of State to govern by regulation. The third, Amendment 49C, seems to imply that the Secretary of State can do what she likes, when she likes, merely by regulation. I am not sure that that is the right way to go about legislating in this field. I hope that I will cover these points in greater detail in my brief remarks.
I appreciate also the extreme importance of this matter. I make it quite clear to the noble Baroness and to the House that the Government take this very seriously indeed. We understand what my noble friend Lady Brinton called the fear and trauma that it can cause victims, many of whom are women living in fear of physical violence as well as mental anguish. We accept that more needs to be done—I make that quite clear—to protect victims of stalking and to stamp out such behaviour. That is why the Government took the initiative as long ago as last November in launching their consultation, which sought views on how we could more effectively protect victims of stalking—including, if necessary, through strengthening civil and criminal law, and police powers.
Protection of Freedoms Bill
Lord Lucas Excerpts(12 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee
My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.
Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.
The UN Committee on the Rights of the Child has made it clear that:
“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.
Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.
I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.
The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,
“it is they who should in the first instance be informed and consulted about the use of their personal data”.
Lord Lucas
My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.
Lord Rosser
My Lords, we have Amendment 24 in this group. The purpose of the amendment is to effectively remove from a child of primary school age the application of the provisions that would enable a child to override a decision by their parent or parents that their child’s biometric information should be processed. However, I fear that the wording of the amendment could be interpreted as also excluding children above 12 years of age from the provisions in the Bill on this issue, when that is not in fact the intention. Our view is that no child should be able to overrule their parents’ decision on this issue in the way envisaged in the Bill; indeed, we believe that the process should be agreed, or otherwise, by the parent on the basis of having to opt out rather than opt in, as the Government propose.
However, the Government have resisted changing the Bill other than to say that the consent of only one parent is required, provided the second parent is not raising an objection. Hence, our Amendment 24 seeks to address the issue of overriding a parent’s consent in relation to children of primary school age. The Government have argued that a child of primary school age should be able to make this decision. However, in fact, the decision that the child can make is restricted in a way that the Government have not yet explained. If the Government consider that a child of primary school age, from five to 11, is fully able to understand the issues involved and make a decision, which goes against the expressed wishes of their parent or parents that their child's biometric information should be processed, then why is it that if the parent, or one of the parents, declines to agree that their child's biometric information should be processed, the child should not also be given the opportunity to override that decision by saying that they do wish their biometric information to be processed? Indeed, in the light of the Government's amendment relating to parental consent, one parent could agree to their child's biometric information being processed, the other could disagree, and then irrespective of the fact that the child might wish to have their biometric information processed, their view would count for nothing, even though within the family two were in favour—that is, the child and one parent—and only one was against—that is, one parent.
What is the argument in favour of that situation when the Government are saying that a child should be able to overrule the wishes of their parents if the child says they do not want their biometric information to be processed? There may be reasons why a child would wish to agree to their biometric information being processed in a situation where at least one parent had said no. It might be that all or nearly all the other children in the class had agreed to have their biometric information processed, and the child might not wish to be different, or be treated differently, and indeed this might be a cause of concern to the child. Yet under the Bill, while a child of five to 11 years of age could stop their biometric information being processed, they could not insist on it being processed.
In the absence of a convincing explanation for this apparent anomaly—perhaps the Minister will provide one when he responds—there must be a suspicion that these arrangements are being introduced, under the guise of a very selective definition of children’s rights, when what they are really designed to do is implement an unsaid government policy of effectively making impossible the continued processing of a child's biometric information.
The Minister asked in Committee if we were proposing that a child should be dragged kicking and screaming to have their biometric information processed if they disagreed when their parents had given their approval. I will come back to that point. The trouble with the Government's proposal is that it provides a child, including a young child of primary school age, with the opportunity to very publicly, in their school, override the wishes of their parents, provided of course that they do not want their biometric information processed, but not if they do, contrary to the wishes of their parents. Apart from the prospect of some parents feeling somewhat humiliated, it is hardly giving a message to young children that they should respect the word and wishes of their parents. Indeed, it is doing the exact opposite. If it is all right to overrule parents’ wishes in this very public way on this issue, why should a young child not get the message that it must be all right to do it over other issues?
No school with any sense would force a child to have their biometric information processed in a situation where just parental approval or non-objection was required, but that child nevertheless still refused. A more sensible approach would be for the school to go back to the parents and invite them to discuss the issue with their child. If the matter could not then be resolved by either the child no longer refusing or, alternatively, the parents deciding to withdraw their consent, the school would do best not to pursue the issue and make a martyr, but to tell the child that if they so wished they could change their mind at any time in future. At least that approach would not leave the school having to give the child an open invitation to overrule the wishes of their parents, as is the case under the Government's proposals.
As I said at the beginning, our amendment does not change the Bill in the way we think it should be changed on this issue but, in view of the Government's stance, it does at least provide that the provisions enabling a child very publicly to overrule their parents—but, strangely only if the child does not want their biometric information processed, and not if they do—does not apply to children of primary school age.
Lord Lucas
Lord Lucas
This is also a minor drafting amendment, but I suspect that I shall have to speak to it at greater length. It concerns the scope of “such” in the clause. It is very hard to divine in English what preceding part of the clause “such” is meant to apply to. Clearly, it can go further than the preceding noun. For example, if I were to say, “Some Peers make marmalade; such marmalade is highly prized”, that “such” would clearly apply to marmalade made by Peers and not just to marmalade. However, one can stretch the elastic too far and in that case “such” would seem to apply only to the closing words of a phrase. That is the difference that I have with the drafters of this clause. Clause 33(3) says:
“The surveillance camera code is admissible in evidence in any such proceedings”.
Does “such” mean “criminal and civil proceedings” or does it mean the whole of subsection (2)? This is a moot point. If you put the two subsections together and read straight on, it is absolutely clear in any normal sense of English that “such” refers to the whole of the preceding sentence, but the drafters say that by separating it into two subsections, the “such” applies only to “criminal or civil proceedings”. That is a difficult argument. The additional separation is small and “such” requires to be construed as if what is being talked about is a subset of the whole, but if you are talking about civil and criminal proceedings, you are really talking about the universe of proceedings. There are no other kinds of legal proceedings; you are talking about every kind of legal proceedings in the common world. You would not need “such”, you would talk just about proceedings or legal proceedings. For “such” to have a meaning in that place—I have read and reread that clause—it must refer to the whole of subsection (2). If it does, it allows the surveillance camera code to be admissible in evidence only in cases brought against a person in connection with their not having obeyed the code, not in all the cases that might otherwise involve parking or other aspects of criminal and civil behaviour where the code might be relevant. “Such” greatly restricts the use of the code.
I am clear from my discussions with the Home Office that it intends subsection (3) to be wide—that is, it should apply to any criminal or civil proceedings. It would be much clearer for anyone subsequently reading the Bill if that is what it said, rather than “such”. I beg to move.
Lord Henley
My Lords, I am grateful to my noble friend, particularly for his references to making marmalade. I can assure him that I made my marmalade last weekend. It did not go terribly well and I will probably be making some more this weekend to make sure I can enter it in that great marmalade competition that takes place in Cumbria once a year. No doubt the noble Lord, Lord Campbell-Savours, will be entering his marmalade in due course.
I am sorry that my noble friend still does not quite understand what we are trying to do here, but I admire his persistence. It reminds me of our late noble friend the Earl of Balfour, who frequently put down detailed amendments of this sort to a whole range of Bills and caused the parliamentary draftsmen considerable problems, as they had to try to explain their intentions and how they were getting to them. I hope that I will be able to do that and I shall quote from earlier correspondence.
My noble friend will remember that we discussed this matter in Grand Committee. My noble friend Lady Stowell dealt with it and then wrote to my noble friend Lord Lucas to clarify the overall purpose of Clause 33 and to provide reassurance that the wording of subsection (3) was consistent with the clause’s intention. Perhaps I may quote the relevant sections of the letter. It stated:
“Clause 33(1) provides that ‘a relevant authority’ must have regard to the surveillance camera code; clause 33(2) is deliberately wider than 33(1) in that it provides that any failure to have regard to the code (whether by a relevant authority or by another) does not of itself create civil or criminal liability. Subsection (2) is open to two interpretations: a narrow interpretation to the effect that the code is admissible in any civil or criminal proceedings in which a failure to have regard to the code is relevant, or a wider meaning, namely that it is admissible in any civil or criminal proceedings. We consider that it was clear from the context of the Bill that the words do refer to any civil or criminal proceedings. If you look at clause 33(2) there are no civil or criminal proceedings at that point. Consequently, the ‘any such proceedings’ (in subsection (3)) can really only refer to any civil or criminal proceedings. One also needs to consider clause 33(4) which refers to ‘any such proceedings’, since the meaning of that will hinge on the reference in clause 33(3)”.
I stand by the drafting skills of our parliamentary counsel and believe that the meaning that he has set out is already, should I say, crystal clear. The reference to “such proceedings” unambiguously refers back to the reference to criminal or civil proceedings in subsection (2). We do not need to repeat those words in subsection (3). We remain unconvinced that there is any real merit in such a revision to the Bill. Moreover, if we were to make that change in Clause 33, we would also need to amend Clauses 51 and 62 and Schedule 3, which adopts the same drafting approach.
With that explanation and having read out that extract from my noble friend Lady Stowell’s letter, I hope that my noble friend Lord Lucas will feel able to withdraw the amendment.
Lord Lucas
My Lords, one of the happy consequences of Pepper v Hart is that by setting out what he has, my noble friend has solved the problem, because he has produced something to which the courts can now turn to answer any question that may arise. I am very happy to withdraw my amendment.
Protection of Freedoms Bill
Lord Lucas Excerpts(12 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness O'Neill of Bengarve
My Lords, I want to speak to Amendments 147A, 147B, 148A, 148C and 148D. I will also comment, but much more briefly, on the more comprehensive Amendment 151, in the names of the noble Baronesses, Lady Brinton, Lady Warwick and Lady Benjamin, which I support, and I will comment very briefly on one of the amendments in the name of the noble Lord, Lord Lucas. Before doing so, I would like very much to thank the Minister and the Bill team for their exemplary courtesy and helpfulness in explicating their thinking on Clause 100—not, I think, the simplest clause of the Bill. If we have not reached agreement, it is not for lack of effort on their part.
Secondly, I would like to make it entirely clear that I am in favour of making scientific data more open. Science needs openness for its own purposes; it needs to have open data so that it is possible for others to check and challenge, and openness allows data to be put to unanticipated uses. Therefore, I am in much sympathy with the overall purpose of this part of the Bill. Of course, it used to be feasible—and it was standard practice—to publish data within articles in scientific journals. That is no longer feasible because of the size and complexity of many scientific data sets, so openness now has to be sought in other ways.
However, I believe that the Bill is based on too confident a view of the effectiveness and adequacy of the system of exemptions established in the Freedom of Information Act 2000 and of their capacity to avoid undesirable and unintended effects—particularly in this area, which is essentially that of scientific databases. Clause 100 proposes a seemingly minor, but in fact very substantial, change in the application of the freedom of information requirements to the release of data sets by public authorities. I will not at this stage say anything further about the use of the term “public authority”, as I think that we all understand that this means a publicly funded authority, which may, however, be a research institution or university that also has charitable status.
On the surface, Clause 100 simply requires the release of data sets in reusable electronic form, but I believe that in practice its demands will create a number of risks and problems. Let me therefore begin with Amendment 147A. The present drafting of the clause is, I believe, ambiguous, in that it requires data to be released upon request if the data are, or form part of, a data set held by a public authority. Amendment 147A seeks to restrict that requirement to “completed” parts of a data set held by a public authority. While it is reasonable to require that completed parts of still incomplete data sets be disclosed if requested—for example, the data pertaining to a past year in a continuously updated series—there is no benefit to anybody in disclosing an incomplete part of a data set. Indeed, requiring disclosure of incomplete parts of data sets could be misleading as well as damaging to research projects and to those provided with the incomplete, and perhaps misleading, data.
The clause would currently require disclosure of data sets while data were still being entered and had not yet been checked. At that stage, the incomplete part of the data set might be misleading. To take the example of a multi-centre clinical trial, requests for disclosure of incomplete parts of the data set could lead to the release of data that related only to a distinctive subset of patients whose data happened to become available at an earlier stage than those of other subsets of patients whose results might differ—that is, after all, the reason why the structure of clinical trials is quite elaborate. Such misleading releases might, I fear, falsely raise or dash the hopes of patients suffering from a serious condition, who would read the incomplete data set released as indicating that they had grounds for hope or despair.
I think that this issue arises because the drafting actually conflates two very different types of incompleteness in data sets. A data set may be incomplete because it relates to an ongoing project. In this case, completed parts of that data set relating, for example, to completed periods or phases in the project may indeed be available and could be released upon request.
In the second case, a data set or parts of a data set may be incomplete because the data are not yet fully available for entry, have not yet been entered or have not yet been checked. It could be highly misleading to require disclosure in the second case. Amendment 147A seeks to limit such requirements to disclose to the completed parts of data sets, where the danger of misleading is less.
Secondly, Amendment 147B requires that access is provided on request to data sets in reusable electronic form. Again, I stress that this is in principle an admirable thought. Where a data set is, for example, a relatively simple spreadsheet, this requirement would create no more difficulty for research databases than it does for government data sets. However, some scientific data sets are of orders of magnitude larger and do not use standard software; even if it is feasible, it may be extremely costly to render them usable by others or, indeed, reusable even by others with technical skills. We have to remember that those of whom data are requested will not know the skills of those who request them. In such cases it may be necessary to provide metadata or to process data further in order to make access to them more feasible even for competent others. It is more usual to make research data available by archiving data sets or by setting out a publication or so called data sharing scheme that will provide access for others and also secure the crucial benefits of professional data curation and data security.
Amendment 148B will permit holders of research data to undertake to provide those data using these normal and reliable routes. At present, the Freedom of Information Act grants an exemption once data sets have already been placed in the public domain in this way, such as in a data archive or through a data sharing scheme. This amendment seeks to postpone access where such archiving is not merely foreseen but is something that data holders have undertaken to provide. In effect, it would create a temporary exemption for the data concerned. The Minister might see this as an opening for procrastination. However, if he is sympathetic to the realities of the problem, he might perhaps wish to consider at least a version of the amendment that offers a limited time for this exemption—for example, six months after the completion of the relevant research project or phase of the research project. It is a question of trading off quality for instant gratification, I suppose.
Amendment 148A concerns the charging of fees. It seeks to address the real financial implications of seeking to make large and complex data sets available for reuse. The Bill provides for the charging of fees but does not allow public authorities to take account of the real costs of making data available to others. These costs may include not only additional checking and making metadata available but above all—and this is the main concern in the scientific community—the diversion of highly skilled and specialised time from research projects to the satisfaction of freedom of information requests. I have drafted the amendment to make it clear that it is the real costs of disclosure that matter. As noble Lords will have noted from the very helpful briefing provided for this section of the Bill by Universities UK, these costs can be very significant. It would not be reasonable, in my view, to require research projects or universities to bear these costs, which they cannot in principle have known about when seeking and obtaining the funding to do the research.
The last two amendments to which I shall speak very briefly are Amendments 148C and 148E, which are relatively uncontroversial. At present, the Bill restricts the operations that may be performed on data sets prior to required disclosure to calculation. That is just unrealistic. Those who compile data sets also need to check the data, which will be done using a variety of methods, and take steps to ensure data integrity and security, particularly at the point at which data are to be disclosed on request. Amendment 148C provides for this; Amendment 148E is consequential on Amendment 148C.
On Amendment 148, tabled by the noble Lord, Lord Lucas, from what I have already said and what the UUK briefing—now supported by the Academy of Medical Sciences, the Wellcome Trust and other scientific and medical bodies—has documented, the complexity of scientific databases rules out a solution along these lines. It would be very nice if it were feasible, but I believe that it is not feasible.
Amendment 151, tabled by the noble Baronesses, Lady Brinton, Lady Benjamin and Lady Warwick, is a substantial amendment. It takes the more radical step of seeking to define an additional exemption to freedom of information requirements and in the process achieves a number of the specific objectives that I have tried to achieve by more economical means in the amendments that I have tabled. However, their approach has one great advantage, which I believe—although I have racked my brains on this one—cannot be achieved by the more modest approach that I have taken. It recognises the risks to UK science and business and to the personal safety of researchers in certain fields—for example, involving work with animals—and to research subjects that will be created by Clause 100 if it is not amended. We are simply being naive if we imagine that we can rely on all those who request data respecting the intellectual property of those whose efforts produce data sets. We no longer live in a world where that is true, and we can all imagine many scenarios in which data disclosure is sought on behalf of others who work in jurisdictions where intellectual property is widely disrespected, with the aim of getting a free ride on the basis of work done by others without the payment of any fees. In those jurisdictions, legal remedies are not effective. I look forward to hearing a great deal more about Amendment 151. I beg to move.
Lord Lucas
My Lords, I have a clutch of amendments in this group. I will not at this moment comment on those proposed by the noble Baroness, Lady O’Neill, although I am looking forward to listening to others’ contributions on that subject. But it is very important that when a group of scientists ask us as a Government or community to take action based on results that they have published, the data underlying those results must be open to scrutiny. I understand that that has a difficult interaction with the questions raised by the noble Baroness, but I look forward to others’ contribution on how to solve that.
The first amendment that I have in the group is Amendment 148. I should declare that I am an extensive user of freedom of information legislation, particularly as regards universities, which I have found unutterably tiresome and difficult to deal with. One of their more tiresome habits is to refuse to provide information in anything other than PDF format. They get it in Excel, or whatever form, and translate it into PDF to provide it to me, merely to cause me extra work. I have to buy a program to suck it out of the PDF again. PDF is not a transmissible format, as it were, and they are merely trying to make life difficult by putting it in that format. So I would like to be sure that when data are provided they are provided in a properly reusable format. I have never come across a data set that cannot be reduced to tabbed, delimited text. Maybe that happens in a collection of tables, but data are essentially a simple thing. Although the data may be held in an immensely complex form in the program that the scientists are using, in any program that I have come across it should be easy—if only for the purposes of sharing with other people—to drop out at least the base data into relatively simple form.
Lord Lucas
My Lords, I am very grateful for my noble friend’s replies to my amendments. If I might take up his offer of a meeting I think that would sensibly shorten the proceedings of this Committee. Would that be all? In that case I shall sit down.
Lord Lucas
“Means by which communication to be made
In section 11 of the Freedom of Information Act 2000 (means by which communication to be made), after subsection (1)(c) insert—“(d) the provision to the applicant of a copy of an existing record containing the information,”.”
Lord Lucas
This amendment would give people seeking information the right to see that information in its original context. I beg to move.
Lord Henley
I thank my noble friend for speaking to his amendment with such brevity that he caught me unaware. He has set out how he seeks to introduce a provision into the Freedom of Information Act to the effect that, so far as is practical, and where they request it, applicants must be supplied with a copy of the original record containing the information in which they are interested.
I accept that disclosing copies of documents is often the easiest way of responding to freedom of information requests and that that practice is widely followed. In some instances, it may be reasonably practical in terms of cost to supply copies of the existing record, but there may be legitimate reasons why it is not proportionate to do so when the benefit to be gained is balanced by the burdens imposed. For example, the most reasonable interpretation of the amendment would mean that the additional information need not be released if it has not been requested, but if it is, the public authority would be obliged to provide pages of blacked-out text in order to provide the full existing record. I do not think that that would be the most appropriate way forward. Leaving the position that public authorities can provide copies of the original where necessary but they are not obliged to do so is possibly the more appropriate way to deal with this matter, and I hope my noble friend will feel able to withdraw his amendment.
Lord Lucas
I am grateful for that reply. I shall think carefully about what the Minister said, and if I need to ask further questions I shall do so when I meet his officials. I beg leave to withdraw the amendment.
Protection of Freedoms Bill
Lord Lucas Excerpts(12 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lucas
“(2) A parent shall be given the option of not having the child’s biometric information processed and consent is deemed to be granted if a parent does not request the relevant authority not to process the child’s biometric information.”
Lord Lucas
My Lords, if I may start off with a general remark, let me say that I suspect that I will end up preferring the amendments of the noble Lord, Lord Rosser, to mine. My purpose in tabling these amendments is to give us a good chance to discuss this part of the Bill, which I think has gone too far in trying to apply to schools special arrangements for dealing with biometric data that are neither required nor sensible.
In the wider world, letting one’s biometric data go is perhaps frightening. What Facebook is up to at the moment—for example, allowing people to tag photographs, such that I can be identified from photographs on other people’s websites because they are tagged with my name and details and the way in which that allows information about me to spread around the world—is worrying enough in our society but would be extremely worrying in, say, Syria. One should be aware of the dangers posed by the widespread ability to identify people remotely. If it became possible at a distance to pick up people’s identity as they passed shop-fronts and gazed into window displays and to have information on fingerprints widely available so that, for example, as soon as I touched a door-handle the store would know who I was, that would, to my mind, be a fairly nightmarish world to be part of. I am very grateful that our Government show no inclination to go down that road and, indeed, at an early stage abandoned identity cards, which would have been a step in that direction.
However, to my mind, in a closed community like a school, those worries do not apply. The school is supposed to know where each kid is all the time. I remember getting terribly upset when a friend of mine had their child knock on the door, having walked a mile home from school without the school having known that the child was absent. You expect a school to know where the children are, you expect it to know what they are doing and you expect it to be in control of them. Within a closed arrangement like a school, having one’s biometric information available is not such a big thing. Within this community of the House of Lords, the place is full of people—thank goodness—who know who we are. That is a biometric recognition system. One of the reasons why this place is secure is that it is full of doorkeepers who would recognise someone who did not belong. Within a school, an automatic system does no more than that, and it is fundamentally no more frightening than that.
A school has a lot of information on the pupils under its charge. A lot of that information is much more sensitive than a hash of some fingerprint—something that would take a great deal of ingenuity to make any real use of if it escaped. A school has information on what children have done in terms of their academic endeavours, what special needs they have, what mischiefs they have committed and people’s opinions of them, which could be extremely sensitive if they appeared in later life. Schools are used to guarding a lot of data about their charges. Whether they do that as perfectly as possible, I do not know, but one very rarely comes across occasions when this information has escaped to people’s embarrassment—when it does, it has usually been released by their mothers who are so proud of the reports that their children have received at school.
This is the context within which we must think about the sort of information which will be available as a result of a biometric recognition system. All that it is doing is scanning the proportions of a face or taking a few data points from the ridges of a fingerprint—but not as many as you would take if you were doing a proper security scan because you want something that works fast rather than completely accurately. There is no common storage format or easy way of that data being made use of by outside people even if they did discover it.
In these circumstances, as I say, you are supposed to know everything that is going on—knowing whether a child is in a classroom is something that a school is supposed to know. By and large, it is quite rare that these systems are used even to that extent. Mostly, they are used just for tagging library books to see who takes them out and to see who is entitled to free school lunches in order to avoid the use of cash and people being labelled as free school-meal kids. There is no identification—they are in a way disguising someone’s identity and protecting their information when used as meal systems. Fundamentally, though, biometric systems are used because they enable a school to do what it should be doing more efficiently and more cheaply than it could without them.
I agree that there is some basis for asking for parental consent. I probably do not naturally start out from that position, but I am convinced of it by what the Government have said, and by things that have been said to me in a long e-mail correspondence with some of the people promoting this side of the Bill. There are a lot of things that parents are asked to consent to, and it is quite reasonable that a school should explain why it wishes to use these systems and get general parental consent for it. If a parent wishes to say no, the school should make arrangements for that particular child to be excepted. I go along with that.
However, I really want the systems and rules that we put in place for schools to fit in with all the other rules that are there for asking parental consent for this, that and the other—whether it be religious observance, sex education or whatever else. These are taken seriously by schools and there are ordinary systems for them, the basis for which is single-parent consent. If two parents are involved and one objects, that nullifies the consent, but if you are seeking consent all you need is the consent of one parent. With a lot of schools, for parental arrangements it is really hard enough to get that; to go beyond that, in what seems to be an entirely ordinary matter for schools, does not seem sensible.
The other aspect that I want to look at is where facial recognition systems in particular, and other forms of ID, are going to be built into the systems that kids are using. If they are accessing Facebook from school—as many will be, because it is a common way of finding out information and communicating with other children who are collaborating on a project—there will be biometric information systems built into that software that will not be within the school’s power to disable. That will be within the individual child’s power to deal with, and the school will not have responsibility for it. If the school is using Windows 8—not yet out, but in beta form—there will be facial recognition systems built into that, so that when you sit down, your computer knows that it is you; if someone else sits down at your computer, it does not turn on. That, again, is a personally activated system. A school can disable that on school computers, but if the school is allowing children to access laptops and to take them home, as many secondary schools now do, then you would expect the child to be in control of the system and it would not be reasonable to require the school to impose or be responsible for the way in which biometric recognition systems are used without the school’s own systems. Some of the wording that we have at the moment crosses those boundaries.
On my individual amendments, Amendment 85 is completely garbled and I have no idea what it means. It may be that my noble friend’s officials have been able to decipher it, but I think it must have been my handwriting and I cannot now work out what the amendment means. I apologise to him and to the Committee for that.
Amendment 87 is a version of the amendments tabled by the noble Lord, Lord Rosser. It is really saying that you must have single-parent consent and that an objection by the other parent nullifies that, but otherwise you only need one parent’s consent. Amendment 88 is another way of saying that, while the second part of Amendment 87 deals with the point that I made about some bits of biometric recognition being outwith the school’s control. Amendment 90 covers that same point, as does Amendment 92.
Amendment 94 is a worry about the wording in that part of the Bill. There are a lot of schools with these systems in place—several thousand of them, probably including the large majority of secondary schools and quite a lot of primaries. The wording of that part of the Bill might be used to allow a school not to go for retrospective parental consent. My view is that, if we are to have parental consent, all those schools that have the system should write to parents asking for their consent, rather than that consent being assumed or being taken to be too difficult—an exception being claimed under this subsection.
Amendment 97 reduces the age limit to 16, which I think is the common age within schools at which pupils should be allowed to take responsibility, while Amendment 98 questions the width of “equipment”, which in common parlance has animate as well as inanimate means. I beg to move.
The Deputy Chairman of Committees (Lord Haskel)
I have to tell your Lordships that, if Amendment 85 is agreed, I cannot call Amendments 86 to 88 because of pre-emption.
Baroness Hamwee
My Lords, I have Amendment 91 in this group, which is in my name and that of my noble friend Lady Walmsley. The noble Lord, Lord Lucas, has obviously not been subject to Black Rod’s little talk about security in this place, which urges us all to wear our passes at all times—which I acknowledge I am not at this moment—rather than rely on people knowing who we are.
Lord Lucas
My Lords, I know that we are all supposed to do that, but I am sure that the noble Baroness has seen, as I have, groups of guests wandering around with unidentifiable passes and noble Lords with their passes on back to front so that you cannot see even whether they are a Lord let alone who they are. Eyeball recognition by the doorkeepers is much more reliable and efficient, and is probably cheaper at the end of the day.
Baroness Hamwee
Perhaps I had better not continue down this route—I could, but it would take more time than the Committee might like to devote to it.
Another point on which I am perhaps not with the noble Lord is that every school knows what every child is up to all the time—I wish that were so. I am sure that we are going to hear from the Minister about the balance between privacy rights and sensible use of technology—I hope that we are not going to hear about feed-in tariffs, which seemed to stretch the analogy a bit far.
The noble Lord, Lord Lucas, did not know, on reflection, what his Amendment 85 was about. I have been in that situation as well, but that is not so on this amendment, against which I wrote “silence equals assent”—I think that it is the difference between opt-in and opt-out.
Before I come to the detail of my amendment, I wish to pick up on the point made by the noble Lord, Lord Rosser, about the technology being used in schools not being as sophisticated, if I can use that term, as technology used in other contexts. Can the Minister say how reliable the equipment is? That was the immediate question I had in response to the noble Lord’s comment.
My amendment does not contradict any of the other amendments that have been spoken to and is not inconsistent with the Bill. It provides that the relevant authorities, schools, academies and FE colleges should tell parents and children of their rights to refuse consent at least once in every academic year—in other words, it is about informed consent. The suggestion comes from the Children’s Rights Alliance for England, which supports the provisions in the Bill for ensuring that the institutions cannot process biometric data if consent is refused. I know that my noble friend will say a word about the convention rights.
I have been told by the Children’s Rights Alliance about research which shows that most children using these systems have not considered how long their fingerprints would be held for and they generally were not concerned. My response to that is that of course they would not—they are children and they do not necessarily think through all the implications of what they are being asked to agree to. Therefore explaining exactly what the subject matter is, both to them and their parents, is important. Other research—again, I am not surprised about this—shows that when schools have introduced a biometric system they have emphasised the benefits and not talked about the problems. All of this is natural human reaction.
The noble Lord, Lord Rosser, referred to the report of the Information Commissioner in 2008. The Information Commissioner made it clear that schools which collect data must be aware that children are data subjects and that they,
“should in the first instance be informed and consulted about the use of their personal data”.
This being the first principle of the Data Protection Act, he went on to say that,
“Fairness requires that schools ensure that pupils are informed about and understand the purpose for which their personal data is being processed”.
Our amendment would require that they are in a position to give consent—or, indeed, withhold it—but on an informed basis.
Lord Henley
Parents and children, to the extent appropriate for the child’s age, must be informed in the appropriate manner, and we want to get that right. We just do not think it needs to happen every year. If, as my noble friend Lady Walmsley said, there were substantive changes to what was being proposed, then further consent would be required, but we do not have to do that each and every year. Once should be enough for the duration of that child’s journey through that school.
Lord Lucas
My Lords, I am very sad indeed to learn that my noble friend’s equipment is entirely inanimate, but if for the purpose of legislation that is the meaning of the word, I am sure that having it in Hansard will suffice.
I am not at all sure that I understood the scope of “reasonable” as he expressed it. He said that the biometric system had to be run by or for the school, if I remember his wording exactly. I do not see where the boundaries of that are. If a bit of software provided by the school is being used on the school’s computers, why should that fall outside the prohibitions in this Bill just because it is a built-in component of a commonly available system? I would be very grateful if I could sit down with officials between now and Report to go through that.
I would also like to explore the scope of electronic means where we are looking at this consent. What forms of registering consent will be acceptable? This occurs as a general question. How is a school to know that a parent has given consent? How is it to know that it is the parent who has given consent? Schools do not have a stock of signatures to compare signatures against. If it is hard enough with something in conventional writing, how they are going to do it in electronic form I am not at all sure.
Baroness Farrington of Ribbleton
My Lords, I have listened carefully to this debate. My experience is that electronic means are needed to be used by parents because an awful lot of messages from school end up in the washing machine.
Lord Lucas
Yes, my Lords, and in the ordinary way where something is not, as it were, being mandated by law in the way that is occurring in the Bill, that would seem sufficient. I would like to be sure that that ordinary common-or-garden communication that the noble Baroness describes will be acceptable under the Bill. Clearly, there is the matter of a verifiable electronic signature. When we came to introduce electronic means into the definition of writing it was with the concept of an electronic signature that was verifiable so that you could complete documents by electronic means, but that is not what is being talked about here. What we are talking about is getting an email that says, “Yes, I’m happy and so is Fred”. Is that consent by both parents, or is there some greater degree of identification required for electronic communications to be acceptable under this thing? Or is it just the reasonable best efforts of the school? I am not asking the noble Lord to respond now if he has prepared—
Lord Henley
If I may, I will just briefly respond to the noble Lord. Obviously, on the question of what is reasonable, great tomes have been written about reasonability in legal terms for years and years, and it is something that we want to discuss. In regards to, as he said, what forms of consent will be required I think he was quite right to take the intervention from the noble Baroness, Lady Farrington, who as a mother and a grandmother speaks with great experience as to what happens to these messages and where they end up. However, if my noble friend would like to discuss this with myself and officials, that would probably be very useful, just to make sure that we can get it right between now and Report. I will certainly be more than happy to offer a meeting.
Lord Henley
If it was a matter of getting in and out of the school, there would have to be some other provision—as with school meals and libraries and so on—by which they could get in and out. It would not just be by biometric data; it might be by a PIN or a smart card or whatever. But I will certainly look at the point made by the noble Baroness, who speaks, as I said, with such great experience in these matters.
Lord Lucas
My Lords, I am grateful to my noble friend for offering a meeting. There are clearly also other subjects to discuss: what form of records schools commonly have about parenting and guardianship arrangements; whether those are sufficient to deal with the requirements of the Bill; whether the Bill allows sufficient flexibility to deal with occasions when parents should not be communicated with; and how commencement is proposed. The Bill will introduce a considerable process of adjustment even if it is taken carefully. As the noble Earl, Lord Erroll, said, it threatens effectively to make these systems inoperable and therefore to require schools at considerable expense and in a great hurry to put other systems in place and make alternative arrangements. The way in which this section of the Bill is to be commenced is quite important.
I would be delighted to have a meeting; I would be delighted if the noble Lord, Lord Rosser, wanted to join me, because it is clear that we have common concerns about how this will work in practice and a common suspicion that what the Government are about is trying to ban these systems all together. However, for now and particularly with regard to Amendment 85, I beg leave to withdraw my amendment.
Lord Lucas
Lord Lucas
My Lords, the amendments in this group are intended to ask a short trio of questions about how line 36, which is about the admissibility of evidence, will work. First, I want to be sure that it covers civil as well as criminal proceedings because an awful lot of surveillance camera evidence is used in, for instance, parking ticket or traffic enforcement, which are civil proceedings. It is important that if there are rules and regulations being passed about how these cameras should be used, they and the guidance should be equally effective in dealing with traffic enforcement as in dealing with a mugging.
Secondly, if one goes by not general, but certainly frequent, local authority practice, local authorities will rely in civil cases on the fact that most people do not appeal, so the case never comes to court. People pay their fines. Knowing that whenever a particular breach of the code comes to the tribunal the local authorities lose their case, they will none the less continue enforcing because they are losing only 1 or 2 per cent of revenue and the rest of the people are paying up as usual. What the guidance in the code is supposed to do is nullified by the fact that there is no mechanism for spreading the opinion of the tribunal more widely than the individual cases which reach it.
Amendment 104 is intended to propose such a mechanism so that a tribunal can say, “No, you have to stop this. We have seen this five times already and each time we have found for the appellant. You must cease enforcing until you have put this right. We will not allow you to issue any more tickets on the basis of something which we consider to be an unreasonable breach of the code”. The other end of it is that where a tribunal has found a local authority to be in frequent breach of the code and has on each occasion found for the appellant, none the less the local authority will have extracted a very large amount of money out of other people who have not appealed because there is a very substantial disincentive to appeal. If you lose an appeal, you double your fine. There is also a large amount of time taken up in the process of appeal.
I would like to see some mechanism where a tribunal can say to a local authority, in particular, or to other people who are seeking to use camera evidence as the basis of fines, that they must repay not only the appellant but all the other people on whom penalties have been imposed on the basis of the practice that the tribunal disapproves of. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend for explaining and introducing his amendments. I recognise that he is focusing on the specific use of surveillance camera technology, particularly in its use for enforcement of parking and traffic regulations. It is probably worth me pointing out for the benefit of the Committee that the surveillance camera code of practice is not intended to include any speed camera technology. I know that my noble friend—
Baroness Stowell of Beeston
My Lords, I was just about to say to my noble friend that I know that he was not talking about speed camera technology at all. It was just for the benefit of the rest of the Committee. I thought it was an appropriate point for me to make that clear, in case anybody else might not be as clear as my noble friend is on this matter.
I refer first to my noble friend’s Amendment 103, which, as he has explained, seeks to clarify the drafting of Clause 33(3). I believe that the meaning of that subsection is already clear, as “such proceedings” unambiguously refers back to “criminal or civil proceedings” in subsection (2); we simply do not need to repeat those words in subsection (3).
My noble friend’s Amendment 104 suggests that this Bill takes away the right to seek redress where a court has ruled that the code of practice has been breached. We believe this would have significant implications for litigants. In the context of civil proceedings—just to be clear, for example, we might be talking here of someone seeking to enforce the payment of parking charges—a claimant should be able to present all relevant evidence in support of his or her case. Given that the surveillance code of practice will set out guidance rather than rigid requirements for the operation of surveillance camera systems, it would in our view be disproportionate to prevent, as a matter of course, CCTV evidence being presented where a court or tribunal has ruled that there has been a breach of the code.
Clause 33(4) makes it clear that the court should have discretion in taking into account a failure by a relevant authority to have regard to the surveillance camera code in determining a question in any such proceedings. In the context of criminal proceedings, the ramifications of the amendment in terms of the overall fairness of the process are potentially more significant. The effect of the amendment might be to exclude key prosecution evidence or evidence that might exonerate the accused. Our general approach, as I have already explained, should be to leave decisions about the admissibility of CCTV evidence to the court or tribunal in question.
Lord Lucas
My Lords, I am very grateful to my noble friend for that answer, particularly the sudden inspiration which struck her at the end and which gave me great comfort so far as Amendments 104 and 105 are concerned, which I agree were pushing it a bit. However, I still have concerns on Amendment 103.
I agree that Clause 33(3) refers back to Clause 33(2), but the latter refers to the acts of people who are running surveillance cameras, not to the acts of people who are caught on surveillance cameras. It is not clear to me that the inference that she suggested should be imported into Clause 33(3)—that the civil and criminal proceedings in Clause 33(2) apply—is justifiable, given that they refer to completely different sets of court cases. One is cases taken against people who are using cameras and the other is cases against people who are caught on camera. I should be very grateful if the Minister could write to me to answer that point in detail if she does not have an answer in front of her now.
Baroness Stowell of Beeston
My Lords, I would be very happy to take away the points that my noble friend has raised and will, of course, write to him in due course.