Policing and Crime Bill

Lord Paddick Excerpts

Committee: 2nd sitting (Hansard - part two): House of Lords
Wednesday 26th October 2016 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I have not read the speeches of the two noble Baronesses. I am about to make a speech on an amendment that I am about to move. I can only say that it completely dovetails with what has just been said. I am not entirely certain that the superintendent is the most important rank in the police service, but I probably have a special interest in some of that. However, I absolutely subscribe to the point of view that superintendents are the workhorses of governance and practice and I support this amendment.

[Lord Paddick]

My Lords, I support to an extent the amendment in the name of my noble friend Lady Harris of Richmond and the noble Baroness, Lady Henig. Clearly, superintendents, as my noble friend articulated at length, play an essential role, which is recognised extensively in legislation.

Also in this group, I and my noble friend Lady Hamwee intend to oppose the proposition that Clause 46 stand part of the Bill. Clause 46 allows the Secretary of State by regulations to specify the ranks that may be held by members of police forces other than chief officers of police. A great deal of concern has been expressed in the public domain recently about the cost of, and the perks given to, chief officers of police. One would have thought that if the Government were going to legislate, that is an area that they might have turned their attention to. As the noble Lord, Lord Blair of Boughton, mentioned, we have been here before with the Sheehy report the last time that the Conservative Party was alone in government.

From memory, it was a decision of the Sheehy report and the Government to abolish the rank of chief inspector. At some stage before that was fully implemented, the decision was rescinded. The police service paid off a lot of chief inspectors to get them to retire because it had been told that the rank was going to be abolished, but it never was. That led to the mass recruitment of chief inspectors to fill the gap that had been left because the police service had pensioned off early a lot of the chief inspectors that it then needed.

My point, which the Minister has made continually over the issue of volunteers, is that it should be left to individual chief officers to decide. In the case of police volunteers, the flexibility should be available to chief officers to use them however they want and to give them whatever powers they wish. Surely exactly the same argument applies here: it should be left to individual chief constables to promote officers to particular ranks—or not—depending on local need.

While I accept that, especially in legislation, the superintendent has a particular and pivotal role, similar arguments could be made for police sergeants as custody officers and so forth, or for police inspectors who are often operational team leaders. One could go through and make a case—perhaps not as compelling as that put forward on behalf of the superintendent—for each and every particular rank to continue to exist, given different scenarios in different police forces.

I appreciate that the legislation simply gives the power to the Secretary of State through regulations to specify the ranks but I would argue, for the reasons I set out, both that that is unnecessary and that it limits the flexibility of chief officers in designing a police rank structure that suits their local needs.

[Lord Kennedy of Southwark (Lab)]

Amendment 174, in the names of the noble Baroness, Lady Harris of Richmond, and my noble friend Lady Henig, is in the clause dealing with police ranks. It amends Clause 46 to require the rank of superintendent as well as that of constable to be retained. We heard from both the noble Baroness and my noble friend who put their names to the amendment about the important role that the officers holding this rank play. That was confirmed by the noble Lords, Lord Blair and Lord Paddick, in their contributions.

I very much agreed with the noble Baroness, Lady Harris of Richmond, when she spoke about the holders of these ranks being senior officers taking senior operational roles. They are held by people with the ability to undertake those important strategic roles and it is accepted that they have departmental and functional responsibilities.

My noble friend Lady Henig also spoke about the importance of the role these officers play across the piece in all departments. I also recall the Sheehy report, and the abolition of chief superintendents being very controversial at the time. As my noble friend said, they were then quietly brought back a few years later. We have heard from a number of speakers who are former serving officers as well as Members of this House who served as chairs of police organisations, and know much more than I do about police operations. They have all reached the same conclusion, so I suggest that the Minister should reflect on what has been said. I hope that she will give a very warm response.

--- Later in debate ---

[Lord Rogan (UUP)]

My Lords, the PSNI has a requirement that before potential chief constables are appointed, they have to serve—I think for one or two years—in a force other than one in Northern Ireland. Perhaps that requirement could be introduced in the rest of the UK.

[Lord Paddick]

My Lords, I shall try to be brief. I am getting wind-up signals already. As regards Amendments 176, 177 and 178, the opportunities for international police experience are very limited. Therefore, to mandate it would be to disadvantage many able candidates for promotion. Something desperately needs to be done to stop people being promoted just from within the most senior ranks within the force because the police and crime commissioner knows the candidates and does not know candidates from outside forces. As the noble Lord, Lord Blair, and others have said, it used to be a rule that, if you wanted to be the chief constable, you could not have been the assistant chief constable and the deputy chief constable in that same force. That rule needs to be brought back.

I say to the noble Earl, Lord Attlee, that the difference between leadership and management is that management is about getting people to do what you want them to do and leadership is about getting them to want to do what you want them to do. The latter approach is essential in policing because in most circumstances you are not with the officer when the officer is in contact with the public.

As regards what the noble Lord, Lord Dear, said, the three-day extended interview, the strategic command course and the strategic leadership course were good models and produced good candidates. Something needs to be done to rectify that situation.

I was slightly disappointed that the first I knew of the amendment of the noble Lord, Lord Blair of Boughton, was when I saw it in the Marshalled List. If he had sought our help, we would have supported his amendment. I hope that we can work together on it between now and the next stage of the Bill. The noble Lord may recall that when we had discussions about direct entry at superintendent level, I went further than him and the noble Lord, Lord Condon, in terms of the need for police experience.

The Minister can learn from the experience of the noble Lord, Lord Blair, as commissioner. Within weeks of him becoming commissioner, the bombing on the London Underground and on the bus in Russell Square happened. Do the Government want to put somebody who has no experience of policing, or even somebody who has had experience in another country and who does not know the capacity and the powers of the British police service or the laws that apply in this country, in a situation where within weeks they could face that sort of disaster?

--- Later in debate ---

[Lord Wasserman (Con)]

My Lords, I very much welcome the amendment. It deals with an issue I raised in the Second Reading debate on the Bill in your Lordships’ House. As I said at that time, and repeat for the sake of maintaining the highest standards of conduct and transparency, I was, until a few months ago, an unpaid adviser to the Police Federation of England and Wales and had been acting in that capacity for the best part of the previous three years.

I hope that I also made clear in that debate that the line I was about to take in respect of Clause 48 had not been prompted by the Police Federation. Indeed, it was not even supported by the leadership of that organisation. That position has not changed. My views on Clause 48 and, in particular, on the four words which this amendment seeks to omit, remain as they were in July—that is, mine and mine alone. Indeed, it is a cause of some regret that not even my noble friends on the Front Bench are likely to agree with me.

I say that this is a cause of some regret because my views stem directly from my experience as an official in the Home Office—an official doing very much the same job as those who prepared the Bill. The rule in the Home Office at that time was that, when preparing legislation, every effort had to be made to avoid giving hostages to fortune, or making rods for one’s own back—or any number of similar clichés. In practice, this meant that one’s seniors and betters were constantly on the lookout for words which they could strike out of draft legislation because they were not absolutely necessary. Every word in every Bill, we were taught, could be used by clever, rapacious lawyers as a stick with which to beat the Government—or at least a stick to beat other clever and rapacious lawyers. For this reason, every word in a piece of draft legislation, particularly primary legislation, had to be justified as being absolutely necessary and not amenable to misinterpretation or exploitation for purposes other than those directly related to the main purpose of the legislation in question.

I regard the words “protect the public interest” in Clause 48, as the noble Baronesses who spoke before me said, as precisely the kind of words that are amenable to misinterpretation and exploitation. They certainly are not necessary to achieve the purposes of this particular part of the Bill. I therefore regard them as prime candidates for omission.

The same problems do not arise with the words in the other two paragraphs. I believe that it is very sensible to place a duty on the federation to maintain high standards of conduct and transparency. Everyone understands what those words mean. More importantly, I believe that they are quite sufficient by themselves to achieve the Government’s aims for the federation. In fact, they are probably more than enough.

All of us who take an interest in policing know very well why the previous Home Secretary felt moved to introduce these words into the Bill. I for one strongly supported her doing so. But the words “protect the public interest” are quite different. The federation is at bottom a staff association and its job is to represent its members. It is clearly in the public interest that it should do so effectively—that is why it was established. And it is clearly in its own interest that it should act, as Sir David Normington said, to maintain exemplary standards of conduct, integrity and professionalism and to retain public confidence.

To require the federation to act to “protect the public interest” is quite another matter. I fear that these words are tantamount to giving the federation a licence to interfere in policing matters well beyond its expertise. For example, I see the federation deciding that it is in the public interest that it should monitor and make recommendations on the type of equipment and systems which police forces purchase and deploy; on the leadership qualities of candidates for chief constable rank and other operational matters; or on issues of police governance such as the size and composition of police and crime panels.

Of course, individual members of the federation will have views on all these matters and on many more besides. But what we would be doing by including the words “support the public interest” in this Bill is to give the leaders of the federation grounds for spending their money on studying these matters and publicly advocating for changes in them. Indeed, I believe that these words would permit the federation to extend its remit almost indefinitely and to employ clever, rapacious lawyers to justify this on the grounds that it has a statutory duty to protect the public interest.

The federation has more than enough on its plate in carrying out its core mission. Placing on the federation a duty to “support the public interest” may sound good, as the noble Baroness, Lady Henig, said, but it does not pass the test of being essential to the purposes of the Bill. In fact, I believe that it falls squarely into the category of words which could come back to bite the Government in very unpleasant ways.

That is why I strongly support this amendment and urge the Minister to agree with me that omitting these four words would in no way weaken the motivation of the federation to operate in the public interest but would minimise the opportunity for it to make trouble for itself and others in due course.

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have given notice of our intention to oppose the proposition that Clause 48 stand part. The reason is that all officers of the federation hold public office. They are therefore all subject to the Nolan principles—the seven principles of public life. Can the Minister explain what is to be added by the clause, over and above the Nolan principles?

[Lord Rosser]

I will briefly make two points. I have a great deal of sympathy with the amendment that has been moved by my noble friend Lady Henig. I do not necessarily share the interpretation of the words “protect the public interest” that the noble Lord, Lord Wasserman, attached to them. I think that probably, under some of its other responsibilities to its members, the Police Federation would be entitled to pursue at least some of the issues to which he made reference.

Do the Government interpret this wording of “protect the public interest” to mean that the federation must put the interests of the public before the interests of the members of the police forces it is there to represent? Secondly, does this wording mean that legal proceedings or some other action can be taken against the Police Federation by someone who believes that it has not protected the public interest? If so, who can take such legal proceedings or such other action?

[Baroness Williams of Trafford]

My Lords, I thank the noble Baroness, Lady Henig, for her explanation of this amendment to Clause 48, which amends the 1996 Act to require the Police Federation, in fulfilling its core purpose, to protect the public interest and maintain high standards of conduct and of transparency —as the noble Baroness said. There was a discussion the other day about what the public interest is. I understood that, in a different context, it was not what the public were interested in but something quite different.

In the spring of 2013, the Police Federation commissioned a review to consider whether any changes were required to its operation or structure to ensure that it continued to promote the public good as well as the interests and welfare of its members. The panel’s final report, Police Federation Independent Review, known widely as the Normington review, was published in January 2014 and made 36 recommendations to improve trust, accountability, professionalism and member services. Recommendation 1 was the adoption of a revised core purpose that reflects the Police Federation’s commitment to act in the public interest. The Police Federation accepted the review’s recommendations in their entirety and has already publicly adopted a revised core purpose on a non-statutory basis. The Normington review was clear that a reformed federation would act in the interests of both its members and the public.

Clause 48 focuses on how the Police Federation discharges its representative role—namely by considering the public interest in its actions, in the same way that the police uphold the public interest in all their actions, whether that is fighting crime on the front line or representing colleagues as a member of the federation. The clause does not conflict with the Police Federation’s representative purpose and will not, for example, require it to act against the interests of its members. The ambition here is to ensure that the federation does not operate against the public interest. Indeed, the Police Federation itself, acting in line with the recommendations of Sir David Normington and his review, asked the Government to enshrine its revised core purposes in legislation. That is exactly what this clause achieves.

Sadly, as the Normington review highlighted, a culture of “narrow self-interest” has permeated the federation in recent years—one of “distrust and division”, as he described it. The Government wish to support the federation in proving that it can serve its members and respect the public interest in providing a representative voice for police officers, with professionalism and integrity.

The noble Lord, Lord Rosser, made a point about changing the purpose of the Police Federation as set out in the Police Act 1996. Clause 48, as worded, is clear that the federation must protect the public interest and maintain high standards of conduct and transparency in fulfilling that purpose. The Police Act 1996 sets out what the federation should do and Clause 48 sets out how it must deliver that.

The noble Lord also asked what happens when the public interest and the interests of the police diverge. The Normington review was clear that a reformed federation would act in the interests of both its members and the public. Section 59 of the Police Act 1996 provides that the purpose of the Police Federation is to represent members of the police forces in England and Wales in all matters affecting their welfare and efficiency.

Could the federation be challenged in the courts? It could, on the basis that it was not fulfilling its purpose as set out in Section 9(1) of the Police Act 1996 in a way that protected the public interest, but it may already be challenged on the basis that it was not fulfilling its existing purpose.

I hope I have provided some explanation and that the noble Baroness will feel able to withdraw her amendment.

[Lord Paddick]

I do not think the Minister answered my question about what the clause adds over and above what is within the Nolan principles.

[Baroness Williams of Trafford]

The Nolan principles underpin every single aspect of involvement in public life. Obviously, this is specific to the police in a certain context, but I think the two should go hand in hand. Obviously, there are different aspects to the police compared with other public professions, but anyone who is in public office needs to sign up to the Nolan principles. This is an aspect that applies to the police.

Criminal Justice: Anonymity

Lord Paddick Excerpts

Tuesday 25th October 2016 Lords Chamber

[Baroness Williams of Trafford]

I can tell the noble and learned Lord that guidance and reference material is published by the College of Policing on its Authorised Professional Practice website. It discourages the naming of suspects save in clearly identified circumstances. The College of Policing is consulting on that guidance and we look forward to reading what that throws up.

[Lord Paddick (LD)]

My Lords, does the Minister agree that, although there is a principle of being innocent until proved guilty, when it comes to sexual offences the attitude of many of the perhaps irresponsible media, and certainly the attitude of many members of the public, is that the principle is that there is no smoke without fire?

[Baroness Williams of Trafford]

I certainly agree with the noble Lord, and in fact we spoke about this very point yesterday. We talked about the need for balance, as well as the responsibility of the media. We can all think of cases where the media have reported in perhaps totally irresponsible ways, so in that sense I concur with what he says.

Independent Inquiry into Child Sexual Abuse

Lord Paddick Excerpts

Monday 17th October 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, the inquiry has made good progress since it was established. It is not appropriate for me or the Home Secretary to be briefed in detail on the activity of an independent inquiry while it is under way. However, the inquiry has indicated that it is making good progress in all 13 investigation strands. Preliminary hearings have taken place, evidence has been called for, and the inquiry has received more than 47,000 documents. A research project has been established to support the inquiry’s existing investigations, assist to scope and define future investigations, publish original research on child sexual abuse and analyse information that the inquiry receives from victims and survivors. In addition, sessions have been arranged for hundreds of victims and survivors to come forward and share their experiences with the inquiry. Noble Lords may have seen a statement made earlier today by the chair on her view of the terms of reference. She says that she believes that the terms of reference for the inquiry are necessary and deliverable. She had previously undertaken that an interim report would be with the inquiry before the end of this financial year.

On financing, as I said, the inquiry had a budget of £17.9 million last year. It underspent on that by some £3 million.

[Lord Paddick (LD)]

My Lords, we on these Benches are concerned that lessons of past child sex abuse cases should be learned and applied as quickly as possible. Can the Minister reassure the House that immediate steps to address obvious weaknesses in the way such cases are dealt with will not be deferred pending the outcome of this inquiry?

[Baroness Williams of Trafford]

My Lords, I understand that an internal review of the inquiry will take place. The noble Lord talked about consideration of current cases. Sorry, will he repeat the final bit of his question?

[Lord Paddick]

The concern that we have is that because this inquiry is taking such a long time, there might be some obvious weaknesses in the way that these cases are currently being dealt with that could be addressed but are being put off because the inquiry is still ongoing.

[Baroness Williams of Trafford]

That would be a matter for the inquiry to consider. It is an independent inquiry and it is not for us to try to micromanage or dictate what it does. It is independent. But I take the noble Lord’s point and I am sure the inquiry will be mindful of that.

Policing and Crime Bill

Lord Paddick Excerpts

Wednesday 14th September 2016 Lords Chamber

[Baroness Scott of Bybrook]

My Lords, as the noble Lord, Lord Rosser, has mentioned Wiltshire and Dorset fire authority, I should make it clear to the House that the joining up of those two fire authorities was made under the previous coalition Government, not this Government. A different view has been taken by this Government on this Bill. That is why I asked the Minister whether we could decouple them. The most important thing for the community—I am talking about Wiltshire, not Dorset or any other authority area—is how we can maximise the effectiveness and efficiency of our blue-light services over a particular geographic area. I do not mind who runs them, I just want the services that local people want to be efficient and effective and to be delivered together.

We cannot get away from the fact that, for any road traffic accident, ambulance, police and fire services will all attend. Can we do things better and can we be more effective or more efficient? When we have floods, for example, all three services are probably going to be at a particular place at the same time—along with, I have to say, the local authority and emergency planning. It is not a matter of how we govern a service but how we make it more effective for people and more efficiently delivered.

[Lord Paddick (LD)]

My Lords, I rise to support, to some extent, the remarks of the noble Lord, Lord Rosser. Police and crime commissioners have an extremely complex and wide-ranging job to do as it is. It is not simply overseeing the police service and arranging for its funding, it is also working with other agencies to ensure that crime is reduced in their local area. It is an extremely large and complex operation. To add to that at this early stage in the evolution of the role of the police and crime commissioner could throw the progress that has been made to date off course.

There are of course situations where the police, fire service and ambulance service work together, such as floods or road traffic accidents, but there are distinct areas where the police operate alone, such as law enforcement. There is a very serious and important role that the police and the police and crime commissioner perform in crime reduction, crime detection and prosecution of offenders that does not involve the fire or ambulance service in any way. Indeed, we have seen that when there has been spontaneous public disorder on the streets of the UK, there is a very different approach towards the police and, say, the fire brigade and ambulance service—there is a lot more hostility towards the police. Any merging, or unnecessary merging, of those organisations —creating confusion in the public’s minds—could create more problems than perhaps the Government have hitherto considered.

One has only to read the Bill to see the enormously complex changes in legislation that will be required if police and crime commissioners take over fire and rescue services, particularly if the employees of the fire and rescue service become employees of the police and crime commissioner, or even of the chief constable.

I can see enormous benefit from greater co-operation between emergency services, but an enormous administrative nightmare from going that one further step of allowing police and crime commissioners to take over the running of fire and rescue services. I agree with the noble Lord, Lord Rosser, that the Government, as far as I can see, have not made out a compelling case to show that the advantages will overcome the enormous bureaucratic, administrative and legislative problems created by police and crime commissioners taking over fire and rescue services.

[Lord Bach]

My Lords, I agree very much with what my noble friend Lord Rosser said on Clause 6. However, I also agree very much with what the noble Lord, Lord Paddick, said about the role of a police and crime commissioner. That job involves a large amount of full-time work right from the start, but I would say that, wouldn’t I? The noble Lord mentioned a police and crime commissioner being the bridge between the police and the public in the area in which he or she is elected. Every new police and crime commissioner and, I suspect, those who were re-elected, has to produce a police and crime plan by 31 March next year. That is a formidable undertaking, certainly for the likes of me. Already, a large part of my life is spent trying to work out what I will put in the plan and, perhaps more importantly, what I will not.

In addition, as the noble Lord, Lord Paddick, hinted, partnerships have to be formed—these are very important in a police and crime commissioner’s work—and commissioning has to be carried out to make sure that the limited but important amount of resource that a police and crime commissioner is given under the 2011 Act is used for the general activity of preventing crime and making communities safe. All the while, of course, there is an obligation to look, as a critical friend, at the police force with which they are connected. As far as I am concerned, that is a pretty full-time job. Perhaps I have been lucky in my life, in that that seems an extremely hard-working role.

I do not think there is anything wrong with amalgamating services, if a community wants that. I know the Minister will argue in due course that this is a voluntary step. I will come back to that in a moment. Following our earlier discussion on collaboration, this measure does not fit terribly well with the best collaborative work, which is voluntary, bottom-up, happens, works or does not work and is experimented with. The scheme will look to many people as one that is effectively being imposed.

Orgreave: Public Inquiry into Policing

Lord Paddick Excerpts

Wednesday 20th July 2016 Lords Chamber

[Baroness Williams of Trafford]

Like my noble friend, I remember those years, because I lived in a mining village in the north-east. As she considers all the evidence from the campaign, the Home Secretary will weigh up what it says and decide whether to pursue an inquiry. She will do that quickly.

[Lord Paddick (LD)]

My Lords, I declare that I was a serving police officer at the time of the miners’ strike, but I played absolutely no part whatever in its policing. Would the Minister agree that holding a public inquiry at the same time as criminal and police misconduct investigations could create legal complexities, and that the Home Secretary needs to take the views of the IPCC carefully into account, along with the views of the others involved, even if the IPCC is not making the decision about the public inquiry itself?

[Baroness Williams of Trafford]

It is important to understand the two roles—the noble Lord of course does. The Home Secretary will arrive at her conclusions based on the evidence she looks at over the next few weeks. The IPCC will take a view as an independent body.

Policing and Crime Bill

Lord Paddick Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, I also congratulate the noble and learned Lord, Lord Keen of Elie, on seeing off any potential challengers to his position as Advocate-General for Scotland. However, I am not sure that policing has been transformed in the way that the noble and learned Lord said it had been in his opening remarks. I therefore agree with him that further reform is necessary, and like the noble Lord, Lord Rosser, we support many provisions in the Bill.

We welcome measures to allow further collaboration across the blue-light services, but we are concerned about placing fire services under the control of police and crime commissioners. The policing and prevention of crime and disorder is an enormous undertaking already, without police and crime commissioners being given a completely new area of responsibility. This is a gamble not worth taking. In the same way as the former Home Secretary shied away from police force amalgamations in favour of encouraging the merger of back-office functions and joint tendering for goods and services, we should now draw back from placing the operation of the police and fire services under one strategic lead. Although the savage cuts this Government have placed on police services may have reduced the service to fire brigade policing—only attending when there is an emergency—that is no reason to effectively merge the services at an operational level.

The Government’s proposals to increase the independence of the investigation of police complaints, which thankfully appear to go further than simply changing the name of the Independent Police Complaints Commission, are to be welcomed. Sadly, there is evidence to suggest a culture in the police service, at least in the past, that puts the reputation of the police service before the open and transparent investigation of wrongdoing. We need therefore to carefully consider whether passing decision-making on some aspects of complaints against the police from chief police officers to police and crime commissioners provides sufficient independence. I should at this point emphasise that I am a retired police officer and the provision to allow disciplinary action to be taken after an officer leaves the police service could hypothetically affect me, although not as the Bill is drafted. I say “hypothetically” as, as far as I know, there are no outstanding disciplinary matters against me—he looks nervously at the Benches opposite.

I have sympathy with calls for changes to the Bill to allow disciplinary proceedings to be taken in serious cases beyond 12 months after an officer leaves the service and for the provisions to be made retrospective. The gap is likely to be narrow between very serious disciplinary misconduct and criminal behaviour, prosecution for which is clearly not dependent on whether a police officer is still serving, but, in my opinion, police officers should not be able to avoid being held to account for serious misconduct because they have left the service. We also need carefully to examine the protection given to whistleblowers employed by police services. I am concerned to ensure that, should the matter become disciplinary, the whistleblower continues to be protected.

Increasing the power of Her Majesty’s Inspectorate of Constabulary is also welcome, although the power for the chief HMI, instead of the Home Secretary, to appoint assistant inspectors needs to be looked at carefully. That is fine when the chief HMI is not a retired police chief and the assistant HMI is not a police officer but if in future the previous practice of appointing former chief constables as chief inspectors of constabulary is resumed, I would not be as relaxed about them appointing their own former colleagues as assistant HMIs.

The provision to give police volunteers police powers is as worrying as it is puzzling. Most people can be volunteer police officers, police officers in their spare time. They are called special constables. They receive extensive training and have all the powers of a regular constable. Unless you know where to look, they are indistinguishable from regular police officers—they wear a small insignia on their uniform that depicts their status. Everything should be done to encourage and nothing should be done to discourage people from becoming special constables. To give other police volunteers police powers such as those enjoyed by police community support officers appears to me unnecessary, counterproductive and even more confusing for the general public.

I am not sure there will be much opposition to the abolition of traffic wardens. I would prefer the decision whether to have police officers of a particular rank to be left as an operational decision for chief police officers rather than an executive decision made by the Home Secretary by regulation.

The time limitations being placed on police bail and its strengthening in terms of compliance by the subject are welcome, but the Government need to be aware that the increasing challenge of meeting tight deadlines for investigations against a backdrop of fewer police officers to carry them out will be a real challenge.

Another aspect of recent high-profile cases also needs to be discussed. We intend to bring forward amendments in Committee so we can debate whether pre-charge anonymity should be given to those accused in the unique circumstances of historic child sex abuse investigations. The police and the CPS face unique challenges in bringing successful prosecutions when offences were committed more than a decade ago, and the publicity for those accused but not charged can be devastating. I believe that the concerns of those who fear that other victims may not come forward can be addressed.

We also welcome provisions to protect young adults in custody and those detained who are in mental health crisis but, as the noble Lord, Lord Rosser, said, that is provided that National Health Service mental health provision is properly funded to ensure that the gap created by not using police cells is covered by the National Health Service.

The provisions that compel those whom the police believe not to be British citizens to produce their passports again draws the police into the front line of immigration enforcement—a worrying trend already started by the provisions in the Immigration Act 2016. Marine enforcement powers in the Bill, which may not concern many British citizens, raises the potential for scenes reminiscent of Australia turning sinking ships full of asylum seekers away from their shores. That any ship can be boarded, searched and forced into port, if any offence that is an offence in England and Wales has been committed on board, appears disproportionate.

There are other matters on revenge porn and the use of tasers in mental health settings that we in the Liberal Democrats raised in the other place during debates on the Bill, and we wish to debate those issues again in this Chamber.

I apologise for taking so long and for not comprehensively covering the areas that we want to scrutinise in this Bill in my opening, but when the Long Title of the Bill is over 300 words and the Bill itself is over 300 pages, I hope noble Lords will understand why.

Terrorist Attack in Nice

Lord Paddick Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Rosser (Lab)]

I start by welcoming the Minister to her new post and the quiet life that involvement with the Home Office normally provides. I also thank her for repeating the Statement already made in the Commons.

I am sure that everyone in this House would wish to associate themselves with the expressions of condolence in the Statement to the family and friends of the 84 people killed in Nice on Thursday night. Our thoughts are also very much with the 85 people—and their families and friends—who are, it is reported today, still in hospital, 18 of them in critical condition. We also express our support for the people of France at this difficult time following the third big terrorist attack there in 18 months. Unfortunately, there have also been terrorist attacks elsewhere in Europe and in many other parts of the world over the same period. That means that dealing with this apparently increasing problem requires, as the Statement said, an international solution to defeat those who attack us and our partners.

Have any British citizens, or close relatives of British citizens, been killed or injured in the attack and, if so, how many? What specific assistance has been offered to either them or their families? Is any new or additional advice being offered to British nationals travelling to France, or thinking of travelling to France, in the light of this third attack in some 18 months? The Tunisian delivery driver who carried out the mass killings held, as I understand it, a French residency permit, which once again brings it home to us that terrorist attacks are not necessarily carried out by people who move into a country and then shortly afterwards commit the atrocity.

We regularly, and quite rightly, express our appreciation of the work of our police, security and intelligence services in protecting us, and we reiterate that appreciation today. However, in the light of what is said in the Statement, are the Government saying that an attack of the kind we have seen in Nice, with a truck being driven at speed and for a considerable distance into the large crowds who had congregated in significant numbers to celebrate an important national day, could not happen here because our policing and security arrangements would not have allowed a truck travelling at speed, driven by an armed individual or individuals, such access to a large crowd?

Can the Minister say whether the Government and our police and security services have learned any lessons from this terrible incident in Nice, without necessarily indicating exactly what those lessons might be?

The French Interior Minister has been quoted in the press this morning as calling for young volunteers to join France’s security service reserves. Apparently, the reserve force is made up of 12,000 volunteers aged between 17 and 30. The best way to make the use of such a large force unnecessary is to prevent terrorist attacks happening in the first place, but are we in a position to strengthen our police and security services at short notice, should it ever, unfortunately, become necessary to do so?

Finally, we have recently seen a significant increase in hate crimes in this country following the EU referendum and its outcome—an increase which the Prevent programme does not address. Do the Government regard this sudden rise in such crimes as potentially increasing the threat of a terrorist attack in this country, or is it their view that the recent increase in hate crime will have no impact or implications in this regard?

[Lord Paddick (LD)]

My Lords, I, too, thank the Minister for repeating the Statement and congratulate her on her new appointment, which I personally warmly welcome. I say “personally” because I am sure she will be a formidable adversary, but I welcome her on a personal level. I add our condolences from these Benches to all those affected by the horrific events in Nice—a truly horrifying massacre of innocent people.

As a result of my research on the Investigatory Powers Bill, I have been privileged to visit the headquarters of MI6 and GCHQ in recent months, and have been astounded by what those services are capable of and the work that they do. They deserve the highest praise. I know from personal experience in the police service of the expertise that exists in terms of policing events involving public order where large numbers of people gather. I am greatly reassured by the combination of those two bodies in the UK. Can the Minister comment on what appears to be a worrying trend that, far from being devout religious individuals holding extreme religious views, the people involved in these sorts of attacks are socially excluded, vulnerable petty criminals influenced by those advocating violent extremism based on a grotesque distortion of true Islam? I want to make an important distinction: they are being influenced by violent extremism, which should be seen as distinct from simply extremism, which the Statement mentioned.

Whether terrorist outrages are carefully pre-planned events, planned and co-ordinated by Daesh from Syria, or the actions of lone wolves inspired by Daesh, preventing them effectively depends on the sharing of intelligence across international boundaries. We need to know where to concentrate our limited resources, based on that intelligence. Can the Minister reassure the House that saving human lives will be placed above Brexit politics, and that the new Foreign Secretary is urgently acting to preserve and enhance links with our European Union partners so that effective counterterrorism co-operation improves rather than declines as a result of the UK leaving the European Union?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for their contributions. The noble Lord, Lord Rosser, asked how many British citizens were victims of this attack. It is too early to say, but when we do have that information I am sure it will be shared with noble Lords across the House. He also asked about British citizens living here, or in France, being worried. The FCO has information on its website which is regularly and frequently updated. Citizens can contact the consulate, either at home or abroad, for updated advice about whether to travel or to find out whether their loved ones have been involved in this atrocity. The noble Lord talked about the lessons learned from Nice. He makes a very valid point. A COBRA meeting was held on Friday; we are always learning lessons and updating security to do things better. I am proud of the work that we have done in collaboration with the French authorities since this terrible attack. The noble Lord asked about strengthening funding for the security and intelligence services. We will be putting an extra £2.5 billion into them.

The noble Lord also asked about hate crimes increasing—they have. They increased after Paris last year and they increased after the EU referendum. I would not be surprised if another incident did not trigger another spike in hate crimes. In my other job, I talked about how communities have been quite resilient and come together since the Brexit vote. The Polish community certainly felt very strongly that the community around it was very much its friend. The community had come together to comfort and help each other in the wake of these events which were caused by a few criminals. That is what they are—criminals—and, as the noble Lord, Lord Paddick, said, they are extreme, violent people. We need to think about how our communities build up that resilience and to build on the cohesion work we have done to ensure that if anything else threatens us we are resilient to attacks and hate crime.

The noble Lord, Lord Paddick, is absolutely right that the individuals who commit these crimes are not originally motivated by religion. They are isolated, bitter individuals who use some of the online forums that are so accessible and encouraging to them to promote, in the case of Nice, an extreme act of violence. Of course we do not know what has motivated this individual but I am sure that we will soon find out. The noble Lord also made a very good point about saving human lives being above Brexit. We have always worked with our neighbours in France, including before we even had a European Union. We will continue to collaborate with them, as we have done so effectively over the last few days.

Policing and Crime Bill

Lord Paddick Excerpts

Monday 18th July 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, another day, another 323 pages of Home Office legislation. I realise that for the noble and learned Lord, who has had to immerse himself in it, this must be a bit like having his client settling at the door of the court, as he will not be able to continue with it. We have a Long Title which is long enough for the antennae of many noble Lords to twitch with the prospect of introducing their specialist subject—the noble Lord, Lord Moynihan, demonstrated that amply.

As it always does, the House has demonstrated much expertise in, and practical experience of, aspects of policing. This is called the Policing and Crime Bill but, from the preponderance of briefings that I have received—other noble Lords will, no doubt, have as well—I wonder whether a significant part of it should have been led by the Department of Health. The noble Lord, Lord Brooke of Alverthorpe, made a similar point, though perhaps coming from a different perspective. There are four clauses, out of more than 150, on powers under the Mental Health Act. While the organisations from which I received briefings gave some welcome to these, the concern to do more and better comes through loud and clear. As Mind pointed out—and the noble Baroness, Lady Howe, reminded us—the Mental Health Act 1983,

“allows people to be deprived of their liberty when they haven’t committed, or are not suspected of having committed, a crime”.

Concerns about the places of safety provisions have been expressed in the Chamber and from outside including, most recently, from Black Mental Health, some of which came through on my iPad after we had started the debate.

Inevitably, there has been a focus on resources. I hope we might hear something positive from the Government—a Government who acknowledge that mental health services are a Cinderella. My right honourable friend Norman Lamb had seven amendments in the Commons. Reference has been made to some of his concerns, but not to disallowing the use of tasers by police officers on psychiatric wards. They have no place in mental health care—I stress care—nor, really, do the police. We will pursue his concerns and, I suspect, more, as we have more scope in this House.

According to the Long Title, the Bill will,

“make provision to combat the sexual exploitation of children and to protect children and vulnerable adults from harm”,

but not as extensively as the children’s organisations which work so effectively together point out. We have heard concerns about extending child abduction warning notices, online offences, disrupting grooming and therapeutic support for victims of abuse, which is something I feel strongly about.

As the noble Lord, Lord Blair, said—and I think the noble Lord, Lord Rosser, did too—the Bill was introduced as “finishing” the job of police reform. Will it ever be finished? Some 42 police forces provided information to a Liberal Democrat FOI request about 101 calls. This is nothing to do with Nineteen Eighty-four—I have not got my Bills mixed up. From 2012 to date, 3.5 million calls were unanswered. These 101 calls may not be about emergencies, but that does not mean they are not about serious matters. To the citizen, any call to the police which is unanswered is serious.

I share doubts about whether the administrative arrangements will lead to increased confidence. Much has been said this afternoon about local collaboration between the blue-light services. Along with my noble friend Lady Bakewell of Hardington Mandeville, I feel that local authorities should have a leading position in decisions around this. Allowing police and crime commissioners voting rights at local authority meetings is, at the least, questionable. My noble friend referred to the term “good will”, which is an immensely important point, and I remember the chambers of commerce report to which she referred.

I turn to governance issues. Maybe the summer holidays will re-energise us all and enable us to come up with an enormous raft of amendments to debate the points to which our attention was drawn by the noble Lord, Lord Harris, and by the noble Lord, Lord Bach, in his compelling speech. We are told all this is based on efficiency and effectiveness, but whether that is fulfilled rather depends on the criteria you set.

On the subject of confidence, I take the point made by the IPCC—as it still is—that a change of name to Office for Police Conduct is likely to be read by the public as meaning a police body, not an independent one, as my noble friend Lady Harris of Richmond said. There is far more to be addressed on conduct and complaint matters, but I will indulge myself by saying that “super-complaint” seems to me to be a very unfortunate term.

There is also appropriate concern about what has been called the constitutional novelty of directly elected politicians taking on a quasi-judicial function.

How the police use civilian staff seems to have swung to and fro over quite a short period. When I was first concerned with the Metropolitan Police’s budget, through my membership of the London Assembly, we often questioned what seemed to be a widespread view that you could not, for instance, handle human resources if you did not wear a uniform. The pendulum has swung a lot. Whether expanding the role of civilian staff and volunteers—no doubt driven by cost-cutting—jeopardises the service, is something which we must discuss. I recognise a lot of what the noble Lord, Lord Blair, was talking about. I do not know whether I should be concerned, but I am, about the impact of all this on neighbourhood policing. Its status, and the investment in it, seems to have been reduced—I might even say downgraded—over not a very long period.

The provisions about the detention of 17-year olds show the value of the European Convention on Human Rights. We have a 35-page human rights memorandum and there are, of course, enhancements of human rights in the Bill. Like others, I suspect this is because of the scrutiny role of this House. I do tend to go straight for the problem areas and forget to acknowledge the good bits. There is also an 85-page delegated powers memorandum, so that might turn out to be material for scrutiny.

The requirement to confirm nationality will take us to human rights issues and, for the second time in a matter of months, to the confusion of the roles of police and immigration officers. This was raised by the Joint Committee on Human Rights, of which I am now a member. In a letter to the then Home Secretary, the chair of the committee wrote:

“Although the Government has accepted that Article 14 of the Convention may be engaged in respect of foreign nationals, the ECHR memorandum does not consider any potentially differential impact on BAME UK citizens”.

She referred to the,

“discretion to the individual officer as to whether or not to ask the arrested person to state their nationality. This raises the prospect of UK nationals who are members of ethnic minorities being more likely to be asked to state and then prove their nationality than other UK nationals”,

with a risk of discrimination contrary to Article 14 in conjunction with Article 8. On behalf of the committee, she asked the Government to,

“address this issue of possible differential impact and explain how this differential impact can be avoided or justified”.

The answer was that:

“it is considered that such interference”—

requesting proof of nationality—

“is proportionate and justified to the pursuit of a legitimate aim—namely being able to properly exercise an effective immigration control”.

There is either a circularity or an assumption about what the problem is there. It does not answer the question but answers another point entirely. The Minister replying pointed out that,

“both immigration officers and the police must comply with public law principles”,

including,

“the requirement to act reasonably in all circumstances”,

and that their actions or decisions,

“may be challenged in the courts by means of judicial review”.

I have to say that I do not find that convincing.

Maritime enforcement also raises human rights issues and issues around the refugee convention. We do not seem to have a Minister with particular responsibility for refugees now, which is a pity because their plight must not go out of the headlines and I know that this House will not relegate the matter.

The noble Lord, Lord Condon, referred to a long list of problems that will have to be addressed because of our exit from the EU. Would that we could sort them out in the Bill.

I have said enough for today except for my last note, which says, “Whinge about the timing of Committee”. I am not sure whether this Policing and Crime Bill will be light relief from the Investigatory Powers Bill, as jam in the sandwich during our two weeks in December—

[Lord Paddick (LD)]

It is in September.

[Baroness Hamwee]

I meant September; that was wishful thinking. I do not suppose that that sandwich arrangement would be particularly welcome to Ministers either, but it will not deter us from raising issues on either Bill which we feel must be raised. On the same basis as it takes longer to write a piece for the Sun than for the Guardian, there may be rather a lot of amendments.

Orgreave: Inquiry

Lord Paddick Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Keen of Elie]

It is not a case of the Government delaying coming to a conclusion. As I indicated in an earlier answer, the IPCC has specifically pointed out that a decision on an inquiry at this stage could cross over into further investigations into potential criminal prosecutions. With regard to the disclosure of the unredacted report by a newspaper on 4 May 2016, the entire unredacted report was not disclosed. However, that which was disclosed did show a number of senior officers acting in common in regard to Orgreave and Hillsborough; that is correct. As regards the observations that have been made by the temporary chief constable and the MPs, I agree that those observations were made.

[Lord Paddick (LD)]

My Lords, does the noble and learned Lord agree that an investigation similar to that conducted by the Hillsborough Independent Panel might be the way forward?

[Lord Keen of Elie]

My Lords, that will be a matter for the new Home Secretary.

Investigatory Powers Bill

Lord Paddick Excerpts

Monday 11th July 2016 Lords Chamber

Moved by

[Lord Paddick]

1: Before Clause 1, insert the following new Clause—
“Tests for the intrusion of privacy
In making decisions and taking actions under this Act a public authority must have regard to the following—(a) the rule of law,(b) necessity,(c) proportionality,(d) the need for restraint,(e) the need for effective oversight,(f) recognition of necessary secrecy,(g) the principle of minimal secrecy,(h) the need for transparency,(i) legislative clarity, and(j) multilateral collaboration.”

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have put our names to Amendments 1 and 2. Parliament’s Intelligence and Security Committee have said that privacy should be at the heart of the Bill. Although the Government have made some attempt to put an overriding privacy clause at the beginning of the Bill, we feel that that does not go far enough. The noble and learned Lord, Lord Keen of Elie—in a letter to the noble Lord, Lord Rooker, dated 8 July—spells out the importance of the 10 tests for the intrusion of privacy which the RUSI panel that looked into investigatory powers came up with. Amendment 1 attempts to put those 10 tests for the intrusion of privacy in the Bill.

Although one might consider some of the principles to be obvious, such as “rule of law”, “necessity” and “proportionality”, there are other important elements of the 10 tests—in particular, “restraint”, as it should never become routine for the state to intrude on the lives of its citizens; “transparency”, as it must be evident how the law applies to the citizen if the rule of law is to be upheld; and “multilateral collaboration”, as government policy on intrusion should be capable of being harmonised with that of like-minded open and democratic Governments.

In the letter to which I have referred from the noble and learned Lord, the Government set out what I consider to be a rather optimistic view of how the Bill complies with the 10 tests. We will see, over the course of Committee, how we on these Benches do not share the noble and learned Lord’s optimism about how the Bill actually complies with them. As I said just now, we believe that the privacy aspects of the Bill need to be enhanced, in particular to increase the regard that people have to the Human Rights Act in implementing the Bill.

Section 46 of the Counter-Terrorism and Security Act 2015 provides for a Privacy and Civil Liberties Board. This is already in legislation—it just has not been enacted by the Government—and we believe that it could also strengthen the privacy elements. We support the additional safeguards for confidential journalistic sources and material. We are concerned about how wide so-called targeted interception warrants can be, going beyond simply named individuals to organisations and even groups of organisations.

We are also concerned about the whole issue of the so-called double lock. Why, in non-contentious law enforcement cases, does there need to be any involvement by the Secretary of State at all? Why is there inconsistency between intelligence services’ equipment interference warrants, where there is a double lock, and law enforcement equipment interference warrants, where the Secretary of State is not involved at all, despite equipment interference being more intrusive than interception? We are concerned about how judicial review principles, which judicial commissioners are supposed to apply to decisions of the Secretary of State, can apply if only one side of the argument is present, because the applicant for the warrant puts forward the case for the issuing of the warrant and there is nobody arguing against it.

There is judicial authorisation of interception warrants in all “Five Eyes” countries and international co-operation—as I have just indicated from the 10 principles —is extremely and increasingly important. To ensure that there is co-operation between the UK and other countries, particularly the United States, proper judicial authorisation, not simply judicial review, should be an important part of the Bill.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am grateful to the noble Lord for giving way. I ask whether I have completely lost the plot here. I thought this was the first group of amendments, Amendments 1, 2 and 3. I do not understand why we are ranging over the entire Bill.

[Lord Paddick]

My Lords, what I am trying to demonstrate here is to counter what the noble and learned Lord, Lord Keen, said in his letter, that the Bill complied with the 10 tests put forward by RUSI. I am simply indicating where we feel that the Bill is deficient.

Moving on, we share others’ concerns that the technical capability notices and national security notices, only enforceable against UK companies, could make British products and systems more vulnerable to illegal hacking. There could be a considerable competitive disadvantage to UK companies as a result.

We are concerned about the operation of the filter. As I said at Second Reading, it creates a virtual database, and the noble and learned Lord in his summing up—

[Lord West of Spithead (Lab)]

My Lords, I share the view of the noble and learned Lord. I am a simple sailor, and I am totally confused now as to exactly what the noble Lord is trying to do. Are we trying to insert an amendment, or are we having another Second Reading? The noble Lord is continually saying, “As I said at Second Reading”, but we do not do Second Reading a second time.

[Lord Campbell-Savours (Lab)]

Unless you are a Liberal Democrat.

[Lord Paddick]

My Lords, I am trying to demonstrate—and in many cases, obviously, not succeeding—why the 10 tests as set out in the report are necessary, and how the Bill fails to meet those 10 tests.

As I was saying, on the filter, the noble and learned Lord, Lord Keen, in his summing up said that it did not create a database. I said in my Second Reading speech that it creates a virtual database. No doubt, we can discuss that issue when we come to it.

Overall, we feel that having the 10 tests as part of the Bill is an important safeguard for the privacy of individuals, and would place limitations on what the Government can do. I beg to move.

[Lord Janvrin (CB)]

I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.

In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.

However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.

Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.

--- Later in debate ---

[Lord Campbell of Pittenweem (LD)]

My Lords, before my noble friend responds, having heard the discussion across the Chamber, I am satisfied by the explanation offered by the noble Earl. For this reason, respectfully, to be overspecific about principles that support the whole concept of privacy runs the risk of inclusio unius est exclusio alterius: that is, by being too specific, you prevent the opportunity to look at wider considerations. That may be rather a technical view to take at this stage but it also underlines the points that have been made already about the general thrust of this legislation, which has innovated to an extent that would not have been thought possible even five years ago.

[Lord Paddick]

My Lords, I am very grateful for the comments from noble Lords from around the Chamber, and particularly to the Minister. As we go through the Bill, we will, at each power, indicate how we believe the provisions do not match the 10 tests in the way the noble and learned Lord set out in his letter. However, we can leave that until we reach those sections of the Bill. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated that, of the three amendments, Amendment 3 in the name of the noble Lord, Lord Janvrin, would be the best to include. If it was necessary, we would be very happy to support Amendment 3.

If I may, I will speak––with some trepidation––in defence of my noble friend Lord Strasburger. There are people in the UK who have the sorts of concerns that he has articulated and it is very important that, during our discussions in the House, we seek every opportunity to reassure people who hold those views, however outlandish some Members of the Committee might consider them. At this stage, however, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Lord Strasburger]

My Lords, Amendment 17 in my name would provide for a statutory public interest defence for the offence set out in Clause 3. Clause 3 effectively reproduces the RIPA Section 1 criminal offence of phone hacking, of which the Prime Minister’s director of communications, Andy Coulson—among others—was convicted when he was editor of the News of the World.

I invite the House to support the amendment in this group proposed by the noble Baroness, Lady Hollins, which provides access to justice for victims of phone hacking and incentivises the adoption of the Leveson reforms which the Government have stalled on. But there is another matter which must be considered and which my amendment addresses—the absence of a statutory public interest defence for voicemail interception or any other type of breach of Clause 3.

Let us consider a situation where suspected serious wrongdoing is being investigated by a journalist or NGO and that journalist or NGO has no faith that the police will adequately investigate the matter; for example, a case of police corruption or, more practically, a case where the police have failed to investigate a case such as that of Jimmy Savile. In such circumstances, if the journalist or NGO intercepted voicemail messages which showed the corruption or illegality, and then exposed it, that person should have a defence that he or she can rely on.

Amendment 17 provides for this. The CPS can of course choose not to prosecute under the public interest arm of the “threshold test for prosecutors”, but that is not good enough. Prosecutors make their decisions on the public interest element after reviewing a file of evidence produced for them by the police and after an investigation which addresses the separate question of whether there is enough evidence to pass the first, evidential arm of the threshold test. Such a police investigation could last for months, if not years, and will involve interviews under caution, search warrants and perhaps arrest. That is a real disincentive to investigative journalism.

If there is a statutory public interest defence, the police will be able to see at an early stage that however much evidence they gather to prove that the act took place, or indeed even in the case of an admission, they will not be able to defeat the defence if the facts are clearly made out and their investigations will be curtailed. The benefit of a public interest defence therefore is not so much that it will allow investigators in the public interest to be acquitted at trial, or even that the CPS will choose not to prosecute on the evidential arm before even having to consider the public interest, but that the police will abandon investigations where the public defence is clearly made out in the facts. That will have the benefit of removing the chilling effect of potential police investigations and possible prosecution from investigative journalists who we rely on on these occasions to root out wrongdoing. Perhaps I may invite the Minister to engage in a constructive discussion about whether a narrow but valuable defence can be crafted. After all, noble Lords will be aware that there is a statutory public interest defence in Section 55 of the Data Protection Act, a provision that in Clause 1 of this Bill the Government are relying on as adequately protecting our privacy.

The investigative journalist Nick Davies of the Guardian exposed the hacking scandal. Had he had to intercept voicemail messages between Andy Coulson and one of the several convicted news editors who served under him in order to bring the story to our attention, that would have been in the public interest. It would not have been right that in the absence of a public interest defence which the police knew was valid, he had been arrested and questioned by the very police force whose failures he uncovered. That is why this amendment is so important and I commend it to your Lordships.

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 16, 20, 21, 22 and 84 in this group.

Amendment 16 concerns the offence of unlawful interception, but in the Bill as drafted that applies only to public telecommunications systems, private telecommunications systems and public postal services. It does not apply to private postal services. Examples of those could be the postal services used by the legal profession such as Legal Post and DX. Can the Minister inform the Committee why private postal services are not included in that provision?

Amendment 20 relates to the provision that,

“Conduct which has lawful authority for the purposes of this Act … is to be treated as lawful for all other purposes”.

Presumably, this provision is to avoid the problem we have had in the past where, while interception or equipment interference was allowed under one piece of legislation, it was an offence under the Computer Misuse Act 1990. Presumably, that is why this provision has been included, but surely it should apply to existing legislation—and it should state that it should apply to existing legislation—not to legislation in the future.

Amendment 21 is again about any other conduct under the Bill being treated,

“as lawful for all purposes”.

Surely this should not be as broad as that. It should be restricted to what is lawful only for the purposes of this Bill.

Amendment 22 concerns the service of monetary penalty notices. Paragraph 4(4)(g) of Schedule 1 allows for an oral hearing before the commissioner, but the amendment would add that the person who applies for and is granted an oral hearing before the commissioner can be legally represented.

Returning to something that I referred to in my opening remarks, Amendment 84 is about restrictions on unauthorised disclosures which as written would prevent the Secretary of State from disclosing the existence and contents of a warrant. The amendment would allow the Secretary of State to disclose the existence and details of a warrant if she felt it was necessary in order for Parliament to carry out its functions. As I mentioned before, I do not see how the argument can be made that the Secretary of State should be involved in the authorising of warrants because she can be held to account, when she is not able, under the terms of the Bill as drafted, even to admit that such a warrant exists.

[Baroness Hollins (CB)]

My Lords, I gave evidence to the Leveson inquiry about the press intrusion suffered by my family and I am going to speak to Amendments 18 and 246 in my name.

In Section 1(3) of the Regulation of Investigatory Powers Act 2000, there was a statutory tort for interception of communications. This has not been recodified in the Bill, presumably because the common law has proven to be a sufficient basis for legal actions against those who hack communications. The effect of subsection (1) in my Amendment 18 is to reinstate that tort. The effect of subsections (2) to (5) in my amendment are then to provide access to justice for victims of phone hacking—the criminal offence recodified in subsection (1). It will enable them to sue, without cost risk to themselves, those newspapers which have invaded their privacy but are refusing to guarantee low-cost arbitration.

I hope that this amendment will encourage the Government to bring into effect law already passed by this House and the House of Commons in Section 40 of the Crime and Courts Act 2013. Amendment 18 replicates Section 40 of that Act in a limited way for claims made by victims of the interception of private communications—phone hacking—because only these claims are in the scope of this Bill. The consequential amendment to Clause 243 would have the effect of automatically commencing the provision immediately after Royal Assent to prevent government non-commencement, as has happened with Section 40. Of course, if the Government commence Section 40 forthwith, this amendment will be withdrawn. If the Government do not, this amendment would have the same effect as that law, at least for victims of phone hacking.

I am very grateful to noble Lords from across the House who are supporting these amendments, and for briefings and drafting assistance from Hacked Off, through which I have been introduced to many other victims of press abuse. I remind noble Lords that Lord Justice Leveson’s inquiry found that voluntary newspaper self-regulation by the Press Complaints Commission had failed appallingly and urged Parliament and the Government to ensure that any new regulator set up by the press would be accredited by an independent recognition panel to assure its independence and effectiveness. The idea was, and Parliament agreed, that the newspapers would have to join such a regulator and not be allowed to set up another version of the PCC. The terms of Section 40 of the Crime and Courts Act were agreed, somewhat reluctantly, by the Government to avoid defeat in both Houses in March 2013.

Section 40 was part of the cross-party agreement which included the royal charter, and was signed by the Prime Minister and the leaders of the Labour and Liberal Democrat parties. As a result of this agreement, the noble Lord, Lord Skidelsky, withdrew his amendment to the Enterprise Bill in March 2013 which would have implemented the Leveson-recommended recognition panel by statute. Ben Bradshaw MP and Simon Hughes MP similarly withdrew their amendments to the Crime and Courts Bill, which would have brought in a stronger and faster version of Section 40.

Section 40 provides protection from court costs in libel, harassment and privacy cases involving newspapers and has three policy aims. The first is to guarantee access to justice for claimants in libel and privacy cases against non-Leveson-regulated newspapers. The second is to protect investigative and public interest journalism at newspapers from court costs and thus from so-called “libel chill”. The third incentivises non-Leveson-regulated newspapers to join a Leveson-style self-regulator which has been accredited as independent and effective.

Section 40 would have to be commenced in the usual way provided in all Bills,

“on a day appointed by the Secretary of State”.

It was agreed, cross-party, that commencement of Section 40 would be well before the exemplary damages provision in Sections 34 to 39. Those sections, on exemplary damages, were to come into effect one year after the royal charter Press Recognition Panel had been set up, which should have been in November last year. This makes Section 40 well overdue. Ministers made multiple explicit commitments on the Floor of both Houses to bring in Section 40—I have a list of 25 such commitments. However, last October the Secretary of State announced at a meeting of newspaper editors, that he was “not minded” to commence the statute. Since then, despite being asked on a number of occasions, the Secretary of State has apparently failed to point to any precedent for such non-commencement of part of an Act of Parliament.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Baroness. It was raised by Scottish colleagues—Scottish colleagues with whom I do not agree—but I am quite happy to undertake to write to her. I should say it was raised by the Scottish Law Society, not the Scottish Bar.

Amendments 18 and 246 were spoken to very clearly by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble Lords, Lord Lipsey and Lord Oates. While I am quite happy to write on the matter of press regulation and the commencement of Section 40, press regulation is not the purpose of the Bill. I have to make that clear in this context because while I understand the points that are being made, they do not arise directly in the context of these amendments.

Moreover, the relevant amendments are not considered necessary. There is already a criminal offence where unlawful interception takes place on a public or private telecommunications system or a public postal service. There is also a cause of action which applies in a limited set of circumstances, where the criminal offence does not apply. Where there is an allegation that unlawful interception has taken place on behalf of a public authority, a person may seek recourse through the Investigatory Powers Tribunal, which has the power to provide redress, including awarding damages.

Where the conduct relates to an individual who does not belong to a public authority, there are other causes of action which may be applicable. I may have misunderstood the noble Baroness that the tort which currently exists in the Regulation of Investigatory Powers Act 2000—allowing an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and who intercepts a communication on that system—has been added to the Bill by way of Clause 8, and that happened after the debate on the Bill in the other place. In these circumstances, we are not prepared to accept the amendments.

Turning to Amendments 20 and 21, Clauses 6(2) and 6(3) are important because they provide that where a public authority, or a telecommunications operator, is acting in accordance with a warrant properly obtained under the Bill, or the provisions of Clauses 42 to 50, they can be sure that they are not breaking any other law or required to obtain additional authorisations. This legal certainty is vital for those engaged in the essential work of keeping us safe.

The first amendment seeks to provide that future legislation could make that conduct unlawful for certain purposes. I understand the principle the noble Lords seek to achieve but I do not believe it is necessary. Nothing in the Bill prevents Parliament amending the legislation at a future date to make any of the activity unlawful or provide that some additional authorisation is required.

The second amendment seeks to amend subsection (3). The purpose of this subsection is to make clear that conduct undertaken in accordance with a warrant or which is authorised by any of Clauses 42 to 50 is to be treated as lawful. This is vital in providing companies with reassurance that by complying with a warrant they will not be acting unlawfully in relation to their regulatory obligations or other legislation. The effect of this amendment would be to provide that the conduct is lawful only for the purposes of the Bill. My concern, were we to accept this amendment, would be that we would remove the legal certainty that the companies and agencies rely on to do their job and to keep us safe. We therefore do not accept the amendment.

Amendment 84 relates to exceptions from the duty not to make unauthorised disclosures about warrants. It is absolutely right that the Secretary of State should be accountable to Parliament, even for the most sensitive decisions concerning the most sensitive powers. But when it comes to such matters, which necessarily must remain secret, it is absolutely right that Parliament provides a mechanism for the Secretary of State to be held to account, while at the same time doing nothing to jeopardise national security. That is the very reason for the existence of the Intelligence and Security Committee of Parliament.

To put beyond doubt that the Secretary of State is, and will continue to be, accountable to Parliament through the ISC for decisions relating to warrants, the Government amended Clause 54 and Clause 123 to make clear that the Secretary of State may disclose matters relating to warrants to the ISC. This will allow the ISC to carry out its statutory functions in holding the Government to account, while maintaining our security. It is right for the ISC to carry out this function and it would not be appropriate for disclosure to be made to Parliament as a whole. To do so would breach the long-standing principle of successive Governments to neither confirm nor deny matters relating to intelligence and security and could risk jeopardising our national security. Accordingly, I invite the noble Lords not to press their amendments.

[Lord Paddick]

Can the Minister clarify whether it is not then an offence for the Secretary of State to disclose the existence or content of a warrant to the ISC? That is not our understanding of the Bill.

[Lord Keen of Elie]

It may be then that we have to agree to disagree. It is my understanding of the Bill and it is our position that the Secretary of State is entitled to make disclosure to the ISC for the purposes of answering to the ISC in this context.