Lord Hogan-Howe
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Lord Leigh of Hurley (Con)
My Lords, my amendments seek to improve Clause 124. It is worth reminding ourselves that this clause seeks to amend Section 12 of the Public Order Act 1986. Curiously, that section was itself amended in 2022 to allow the senior police officer to impose conditions on a march if it resulted in
“serious disruption to the life of the community”,
in particular where it results in
“a significant delay to the delivery of a time-sensitive product to consumers”,
or
“disruption of access to any essential goods”
or services to be delivered to places of worship. It is somewhat strange that the Act was amended to allow goods and services to be delivered, but did not mention disruption to the services themselves, so Clause 124 is a great improvement and a great help.
However, I wish to draw to the attention of the Ministers, the noble Lords, Lord Hanson and Lord Katz, that Section 12 is dependent upon the actions of a “senior police officer”, who “may”—the Act is specific on that word—decide to take action. I guess that he may not, as he is not required so to do. The Home Office will still be totally and solely reliant on the decisions of the senior police officer being put into action. There is no override envisaged that the Home Office can apply.
While I am on my feet, I believe that exactly the same point applies to Amendment 372 in the name of the noble Lord, Lord Hanson; again, it says that a senior police officer may choose to do this. I suggest that does not deal with the problem that when complaints are made by members of the public, politicians currently simply put their hands up and say, “It’s nothing to do with us; this is a police matter”. As we have seen in the West Midlands, we cannot rely on the police in every instance to do their duty and act fairly.
At the risk of repeating myself, this is the third time I have raised this point in debates on this Bill. In the previous two discussions, I have not really had an answer from the Ministers. In fact, I am not expecting them to answer it right now. What I am asking is for a commitment to consider this point, reflect on it and possibly meet those with an interest in the matter, and for it to be addressed by the time of Report.
My amendments are needed so that we can be sure that if protesters are banned from being near synagogues, they are stopped from simply heading towards Jewish faith schools and Jewish community centres. Of course, if my amendments protect schools and community centres of other faiths then I would be absolutely delighted, so I hope that these amendments will receive support from all sides of the House. Disappointingly, there is not a Bishop on their Bench, because, in my view, places of worship of all denominations need to be addressed by the Bill.
Make no mistake: Jewish people are leaving the UK as they no longer feel safe, particularly with the marches threatening to come back. I was in Israel last week on a parliamentary Conservative Friends of Israel trip, and Israelis were asking me, “Is it safe to be in London or Manchester any more?”. Businesspeople, academics, scientists, tourists and clerics are all nervous about coming to the UK. As we know, by the way, the marches in Westcliff-on-Sea led to synagogue attendance falling, which cannot be acceptable. We now need to be ahead of the protesters, not behind them. We need to protect faith schools and community centres.
Indeed, there have already been protests outside a Jewish community centre; there is one called JW3, which I support. When protesters were outside it on 27 October, there were unpleasant and aggressive slogans, and the police were powerless to move them on. Ironically, they were protesting at an event which was a conference to talk about future peace progress, with Palestinian representatives speaking.
My amendments attempt to pre-empt what we fear will happen after Clause 124 is passed. I have the support of the Board of Deputies of British Jews, of the Jewish Leadership Council—I declare that I serve as a vice-president—and of the Community Security Trust. All these organisations urge that my amendments be passed. As the noble Lord, Lord Walney, said the other day, these proposals do not conflict with anything the Macdonald review might say. The Government need no persuasion of this, because they themselves have proposed Clause 124 and Amendment 372, both of which would ordinarily be covered by the Macdonald review. There is no reason, then, to wait for his report to put through the proposed amendments.
I hope that by Report, the Minister will be able to signal his acceptance of these amendments, because we will keep pressing them. I am sure that the Government will want to play their part in trying to dial down the anti-Israel, and consequently antisemitic, febrile activities and mood. In my opinion, it is most unfortunate that the Government chose to recognise the State of Palestine when they did. This risked giving the organisations of protest the message that their aggressive and unpleasant actions were being rewarded. The Government now have an opportunity to try to show some even-handedness. I beg to move.
Lord Hogan-Howe (CB)
My Lords, I support these amendments for the reasons that have been mentioned. Lists are always difficult, because wherever you draw the line, there may be another group to be added, but this is a sensible pair of additions to the definition as applied in the Bill. It is difficult, not least because this week we have seen complaints about what is happening in Notting Hill, where an Israeli restaurant seems to have had a protest directly outside it for no other reason than that it happens to be Israeli. This does not seem to have anything to do with the people attending or running the place, other than the connection to Israel. No matter where we draw the line on the list, there may always be others to add. But if we cannot protect children, and we cannot protect where minority and faith groups gather to share their faith, then our society will probably be worse for it. Providing this definition will make the police’s job easier. While others may argue for more to be added to the list, these are two reasonable, well-founded additions.
Lord Marks of Henley-on-Thames (LD)
My Lords, I share the concern expressed by the noble Lord, Lord Leigh of Hurley, that senior police officers do not always act as they should. On Tuesday in particular, I expressed that concern in these proceedings and was rather rebuffed by the Minister. I assure the noble Lord, Lord Hogan-Howe, that I do not believe that senior police officers in particular cannot generally be relied upon to act in the best interests of their community, but I urge the Government to beware of legislating in the confident expectation that they always will. The reservations of the noble Lord, Lord Leigh, are justified. As he explained, Clause 124, if unamended, will permit a senior police officer to impose restrictions where processions or protests are
“in the vicinity of a place of worship and may intimidate persons of reasonable firmness”,
and deter them from attending
“a place of worship for the purpose of carrying out religious activities”,
or from actually carrying out such activities. As the noble Lord has explained, the amendments would add faith schools and faith community centres to list of institutions where conditions might be imposed.
On Tuesday, we went through considerable argument about the purposes of Clause 124. There was a great deal of discussion about protecting synagogues on successive Saturdays, and the noble Lord, Lord Hogan-Howe, has raised the important point that communities gather together, worship or carry out religious activities and celebrations in areas quite apart from synagogues. Bondi Beach, after all, is not a synagogue: it is a public beach where Hanukkah celebrations had been organised and were being attended by Jewish communities.
I add my voice to those of the noble Lords, Lord Hogan-Howe, and Lord Leigh of Hurley: our faith communities need protecting wherever they are gathering for the purposes of their faith. That said, I certainly agree, as does the noble Lord, Lord Hogan-Howe, with the extension of this power to cover religious activities at faith schools and faith community centres. That would be a proportionate protection, and well defined. Faith schools are a particular sensitivity, because they are principally for young people of given faiths, who may be damaged psychologically for life by being attacked in or in the vicinity of those schools. The same goes for faith community centres, where Sunday school activities or religious education may be taking place. Of course, this is of particular importance to the Jewish community in the present climate, in the light of the horrific attacks that have taken place, about which we have heard a great deal. But it is also very important that Muslim faith schools and community centres should be protected too in the presence of considerable xenophobia and Islamophobia.
We need these protections; we need to combat the fear that is now beginning to permeate the whole of our national life, and which has a really unpleasant and damaging effect. It destroys community cohesion, national spirit and the tolerance for which this country has long been famous.
Lord Hogan-Howe (CB)
My Lords, I agree and disagree with the noble Lord, Lord Strasburger, in equal measure, which may surprise him. On the protest point, he reaffirmed what I tried to say the other day, which is that the ECHR does not give the term “facilitation of protest”, but the police have given that term and put that sobriquet over the articles. The danger is—and I am afraid it is what materialised—that it has been interpreted as almost arranging some of the protests rather than the simplistic expression of “facilitation”. I do not think that we are a mile apart on it, but I come at it from a slightly different angle.
I think that facial recognition is an incredibly good thing. People during the debate have agreed that it has a value. It has two purposes: one is to try retrospectively to match a crime scene suspect with the database that the police hold of convicted people; and the other one, which has caused more concern and on which there may be common ground, is about the live use of it.
One thing that I think needs to be amplified—the Minister may mention it when he responds—is that the Court of Appeal has decided that the police use of facial recognition is legal. However, it did raise concerns—this is where I certainly agree with the noble Baronesses, Lady Jones and Lady Doocey, who already made this point—that it needs to treat all people equally. It is not okay to have a high failure rate against one group by race and a different success rate against another race. That is not acceptable. I was surprised, as I know the noble Baroness, Lady Jones, was, when this had not been made public and was discovered in whatever way it was discovered. That needs to be got right. There is no justification for that error rate, and it must be resolved.
Secondly, this may surprise the noble Baroness, Lady Jones, but I agree that there should be more regulation of its use, and that it should be regulation by Parliament, not by the police. Where I disagree is on whether this Act, and this proposed amendment, is the right way to do it. We are going to have to learn, first, how the technology works, how it is applied by the police, where its benefits are and where its risks are. I also agree that there ought to be independent oversight of it and that anybody who is offended by its use should have the opportunity to get someone to check into it to see whether it has been misused. They should also be provided with a remedy. A remedy may be financial compensation, but I would argue that it is probably better that something happens to the database to make it less likely to be ineffective in the future. There needs to be some reassurance that somebody is improving this system rather than not. I am for facial recognition, but there should be regulation and I do not think that this Act is the right time. As has already been said, the consultation that started just before Christmas and concludes, I think, in February will give us a good way forward, but it will need a bit more thought than this Bill, when it becomes an Act, might offer us.
Finally, there are an awful lot of regulators out there, and we all pay for them. There are surveillance commissioners, intrusive surveillance commissioners and biometric commissioners. They are all examining the same area—if they ever get together and decide to have one commissioner to look at the lot, we would probably save quite a lot of money. This is an area in which the existing commissioners probably could do two things. One is to regulate and the other, potentially, is to approve, either in retrospect or prospectively depending on the emergency or the urgency with which it should be used. There is therefore some need for help but, for me, I do not think that this Bill is the right opportunity.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have signed this amendment because I think it is very sensible and covers some ground that really needs tackling. It would ensure that the police could not use live facial recognition technology when imposing conditions on public assemblies or processions under Sections 12 or 14 unless a new specific code of practice governing its use in public spaces has first been formally approved by both Houses of Parliament—that sounds quite democratic, does it not? It is intended to safeguard public privacy and civil liberties by requiring democratic oversight before this surveillance technology is deployed in such contexts.
It is always interesting to hear the noble Lord, Lord Hogan-Howe, former Met Commissioner, on the tiny little areas where we do overlap in agreement; I think it is very healthy. However, I disagree deeply when he says this is not the legislation and it should be something else. We keep hearing that. I cannot tell noble Lords how many times I, and indeed the noble Baroness, Lady Doocey, and the noble Lord, Lord Strasburger, have raised this issue here in Parliament and in other places. The noble Lord, Lord Strasburger, asked a quite interesting question: why should we care? Quite honestly, I care because I believe in justice and in fairness, and I want those in society. As I pointed out yesterday, I am a highly privileged white female; I have been arrested, but I was de-arrested almost immediately by the Met Police when all the surrounding people started saying, “Do you know who she is?” and they immediately took the handcuffs off.
At some point we have to accept that this needs regulation. We cannot accept that the police constantly mark their own homework. We were reassured that all the flaws in the algorithm and so on had been fixed, but clearly we cannot be sure of that because we do not have any way of knowing exactly what the flaws were and who has fixed them. Live facial recognition represents a huge departure from long-established principles of British policing. In this country, people are not required to identify themselves to the police unless they are suspected of wrongdoing. Live facial recognition turns that principle on its head by subjecting everyone in range of a camera to an automated identity check. It treats innocent members of the public as potential suspects and undermines the presumption of innocence.
I disagree deeply with the noble Lord, Lord Blencathra, when he says that it is not a blanket surveillance tool—of course it is. It is a blanket surveillance tool and is highly dangerous from that point of view. It is a mass biometric surveillance tool. It scans faces in real time, retains images of those flagged by the system and does so without individuals’ knowledge or consent.
If the police randomly stopped people in the street to check their fingerprints against a database, for example, we would rightly be alarmed. Live facial recognition performs the same function, only invisibly and at scale. Its use in the context of protest is a dangerous crossing of a constitutional line. We already have evidence that facial recognition has been deployed at demos and major public events, with a chilling effect on lawful protest. People will not go to these protests because they feel vulnerable. They are deterred from exercising their rights to freedom of expression and assembly because they fear being identified, tracked or wrongly stopped. While this amendment proposes a safeguard through parliamentary approval of a statutory code, we should not allow that to imply acceptance of live facial recognition at protests in principle. In my view, this technology has absolutely no place in the policing of democratic dissent.
We should reflect on the broader direction of travel. Live facial recognition is most enthusiastically embraced by authoritarian regimes, while a number of democratic countries have moved to restrict or even prohibit its use. That alone should surely give this Government pause to reflect on whether this is the right legislation to bring in. Independent observers have witnessed cases in which live facial recognition has misidentified children in school uniform, leading to lengthy and very distressing police stops. In some instances, those wrongly flagged were young black children, subjected to aggressive questioning and fingerprinting despite having done nothing wrong. What safeguards are in place to prevent misidentification, particularly of children and people from UK minority-ethnic communities? That is a basic question that we should be asking before we pass this legislation. I support the amendment as an essential check, but I hope that this debate sends a wider message that Parliament will not allow the routine use of intrusive biometric surveillance to become the price of exercising fundamental democratic rights.
I want to pick up something that the Minister said on Tuesday. He directed the Committee to the front page of the Bill and said that, in his view, the Bill was compliant with the ECHR. As the noble Baroness, Lady Chakrabarti, pointed out, that is his belief and his view. It is absolutely not a certificate of accuracy. I am not suggesting for one moment that there is any intent to deceive; I am merely saying that it is not a certificate of truth. With claims about seemingly authoritarian laws being compliant with human rights, that assessment can be challenged and should be challenged as much as possible. It remains subjective and is challenged by the organisation Justice, for example. We are clearly going to disagree about a lot in this Bill, but we are trying our best over here to make the law fair and representative of a justice that we think should exist here in Britain.
Lord Hogan-Howe (CB)
Before the noble Lord, Lord Clement-Jones, sits down, can he address an issue that none of us has addressed yet? These amendments concern the state’s use of facial recognition, for all the reasons that we have talked about. But the private sector is far in advance of this. Some 12 or 13 years ago, it was using a product called Facewatch, which was started at Gordon’s Wine Bar because Gordon was sick of people walking into the bar and either violently assaulting his patrons or stealing things. He put a clever camera on the door and patrons did not get into the bar if they had been accused of something in the past. That product has moved right around the world, and certainly it is extensively used in the UK in different settings.
I am not arguing that that is good or bad; I merely observe that, if we end up in a position where the police have less access to something that can be a good technology, and private commerce is getting benefits that presumably it is able to justify, that inequality of arms does not benefit anyone. It should at least be considered in the consultation that the Government started, which is particularly focused on the police. But as well as the police, we should consider airports, railway stations, et cetera.
Lord Clement-Jones (LD)
Very briefly, I do not think that the noble Lord is making a bad case at all. Live facial recognition, whether in the hands of the public sector or the private sector, needs a proper legal framework: there is no doubt about that. My noble friend made it clear that we believe it is a useful technology, but, the more useful it is, the more we need to make sure that it is under proper control.