Tom Brake
Main Page: Tom Brake (Liberal Democrat - Carshalton and Wallington)Department Debates - View all Tom Brake's debates with the Home Office
Protection of Freedoms Bill
Tom Brake Excerpts(13 years, 2 months ago)
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Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I suggest to the Home Secretary that some of the rhetoric in her speech was perhaps unwise. She is probably still thinking too much like an Opposition politician three months before an election, and not enough like a Home Secretary less than a year into a Parliament who will have to live with the consequences of her decisions and the laws that she changes.
There are difficult balances to be struck between protecting people’s freedoms from police or Government interference and protecting their freedom not to become victims of interference or violence by criminals and terrorists. Those balances should be guided by the evidence, not by the political rhetoric that she has used today about the march to authoritarianism or the ending of British liberties. Although some of the measures that she is introducing are perfectly sensible—we will support many of the sensible measures and arrangements—they are not, as the Deputy Prime Minister has tried to claim, a fundamental rolling back of the powers of the state. There are other areas where we think she has got the balance wrong.
Tom Brake (Carshalton and Wallington) (LD)
Will the right hon. Lady tell Members what evidence there was for 90-day pre-charge detention?
Yvette Cooper
As I have said before, I do not think that it was right to go for 90-day detention and it was not justified by the evidence. There will always be areas where Governments need to be cautious in getting the balance right. Equally, however, they must be cautious not to over-hype the rhetoric and inappropriately claim that problems will somehow be easily solved. There is always a difficult balance to be struck.
I hope that the right hon. Lady, in her tenure as Home Secretary, will not have to deal with some of the extremely difficult and dangerous terrorist incidents that her Labour predecessors had to cope with, such as the Omagh bombing, to which my right hon. Friend the Member for Blackburn (Mr Straw) referred, and the London 7/7 bombings, that led to many of the stronger counter-terrorism measures that her predecessors introduced. I also hope that she will rarely have to deal with some of the deeply disturbing and serious crimes, such as the Soham case, which led to the new procedures on vetting and barring.
The Home Secretary will know that when in the Home Office one can never predict what is coming around the corner, what problems might be uncovered or how one might need to respond in order to protect people’s freedom not to become victims of crime or terrorist threats. In those circumstances, it is wise to build consensus, rather than engaging in the kind of over-simplified political rhetoric that will make it more difficult to strike the right balance in future.
Mr Leigh
That is enough about our friend, I think.
Section 5 of the 1986 Act outlaws
“threatening, abusive or insulting words or behaviour”
if they are likely to cause “harassment, alarm or distress”. The proposal that I wish to make, which I and the Liberals supported before, is the deletion of the lowest threshold of that offence, which is the word “insulting”. That would still leave the two higher thresholds of “threatening” and “abusive”.
The 1986 Act was brought in to replace the Public Order Act 1936, which had worked very well in dealing with the blackshirts and all that. The 1986 Act does not define the terms “threats” and “abuse”, but we all know them when we see them. The courts have often said that. Threat is obvious, is it not? It is when someone is in your face and there is a fear of violence, and abuse is when someone uses obscene language. Insult, however, is clearly something less serious and more subjective, and that is the problem. I believe that removing the word “insulting” would be enough to stop section 5 being misused and generating a chilling effect on free speech.
Mr Leigh
Good, I am very glad. That just shows that there is support for that from all over the House, and indeed from outside.
Section 5 of the 1986 Act is a classic example of a law that was brought in for a fair reason, to deal with a particular state of affairs long ago, but has been used in practice for something quite different. It was brought in to tackle hooliganism, but it is increasingly used by police to silence peaceful protestors and street preachers.
I shall give a couple of examples of how section 5 has been used, to show what has been going on. It has been used to prosecute a couple of hotel owners, Ben and Sharon Vogelenzang, who had a breakfast-table dispute with a Muslim guest. I do not comment one way or the other on their views, but they said that Mohammed was a warlord and that Islamic dress oppressed women. For that breakfast-table dispute, they were prosecuted. True, the judge threw the case out and apparently hinted that the police should have handled it differently, but the point is that for some reason, Merseyside police thought that section 5 applied to theological debates over breakfast. Even though the couple were acquitted, their business went to the wall. It is not enough to say, “Well, we don’t need to worry, because they were not convicted.” We should worry, because people are increasingly worried about expressing strong opinions.
There are other examples. In 2008, a 16-year-old protestor was issued a summons by police under section 5 of the 1986 Act for holding a placard outside a scientology centre that read, “Scientology is not a religion, it is a dangerous cult”, which is something that many people agree with. City of London police referred the allegation that the sign was abusive or insulting to the Crown Prosecution Service. I am glad to say that Liberty, which is supporting the campaign for the change, intervened and the case was finally dropped. However, it shows the problem that exists.
Then there were the animal rights protestors in Worcester, who were threatened with arrest and seizure of property under section 5 for protesting against seal culling using toy seals coloured with red dye. Police told them that the toys were deemed distressing by two members of the public and ordered them to move on.
The last and most ridiculous case is that of Kyle Little. After being warned by the police for using bad language, he was arrested and prosecuted under section 5 for a daft little growl and woof aimed towards two Labrador dogs. I have a dog, my own dearly beloved William, and I am sure he has never felt insulted by anything that I have ever said to him. But this poor Kyle Little, for growling at a dog, was detained for five hours, despite the dog owners not wanting any prosecution, at a cost of £8,000 to the taxpayer. Unbelievably, Newcastle Crown court finally had to acquit Little of the charge. We can see what is going on. [Hon. Members: “It’s barking!”] The right hon. Member for Blackburn (Mr Straw) and others are right. We need to bring it to an end.
We should all worry about this. There is something wrong with a law when the police think that it requires them to regulate debate. As I have said, the 1986 Act was introduced to replace the 1936 Act during a period of football hooliganism, as people might remember. At the time, a White Paper identified the mischief at which the Act was aimed—hooligans on housing estates throwing things down stairs and banging on doors, and groups of youths persistently shouting abuse and obscenities. Section 5 was a fairly reasonable response to that. The then Home Secretary, Douglas Hurd, told the House that it would not undermine civil liberties, but 25 years later, we see a major difference between what was intended and what has happened since. We therefore need to examine the wording. I cannot act very easily, as a Back Bencher, but Ministers can do so very easily.
Liberty has argued that we should use the Bill to repeal section 5 of the 1986 Act in its entirety. That may be going too far for Ministers, and I do not follow Liberty as far as that, but in a classic triangulation exercise, why cannot we just remove the word “insulting” and leave the higher grades? I have support from our own Joint Committee on Human Rights, which heard evidence that section 5 was being used to suppress free speech and made representations to the previous Government, which were resisted. That Government rejected the advice of our own Committee on human rights.
I say to the Under-Secretary of State, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire)—please will he listen for a moment, as the responsible Minister?—that it appears that civil servants at the Home Office are still using, almost verbatim in correspondence signed by him, the arguments used by the last Government against amending section 5. I wonder whether he knows that the letters that he is sending out use exactly the same language as was used by the Labour Government to resist what our own JCHR suggested.
In response to the JCHR recommendations, the previous Government said that they believed that problems with section 5 could be addressed by “guidance”, which is a classic cop-out for civil servants. It is true that the Association of Chief Police Officers recently produced new guidance on breach of the peace, which covers section 5. However, that still encourages police to pursue insulting words or behaviour, because of course, that is what the law tells them to do. If we tell the police that it is wrong for people to use insulting language, they will pursue them. It is up to us to make the law clear so that the police can operate in an entirely sensible fashion. Frankly, it is not good enough for Ministers to say, “We can solve this with guidance,” especially when there is a Protection of Freedoms Bill on the stocks. In any case, an issue as serious and significant as civil liberties should not be left to mere guidance. It is for MPs to make such decisions.
The previous Government used another argument that is still used by Ministers in correspondence. They say that if the word “insulting” is removed from section 5, the police will not have sufficient power to protect the public, but that is not the case. Neil Addison, a barrister who spent 10 years prosecuting cases in Newcastle, has suggested that the “threatening” and “abusive” limbs of section 5 will cover all genuine public order cases. He says:
“Looking back on the large number of s5 cases I have either prosecuted or defended over the years I cannot think of any ‘normal’ public order situation which could not be covered by the words ‘threatening and abusive’. Most cases under s5 involve people (often drunk) yelling aggressively and making frequent use of the ‘F’ word and that is the sort of situation that s5 and indeed the entire Public Order Act was supposed to deal with, it was never supposed to deal with the situation where individuals, whether street preachers or otherwise”,
including demonstrators or people we do not like,
“were expressing their personal opinions.”
We use other laws if we get complaints from distressed individuals. The Protection from Harassment Act 1997 criminalises any repeated harassment of an individual, which I support. Therefore, deleting the word “insulting” from the Public Order Act 1986 would not leave police and prosecutors without powers to deal with low-level public disorder.
One of the silliest arguments used to defend that part of section 5 is that removing the word “insulting” would mean that the courts would have to adjudicate on the difference between abuse, which is criminal, and insult, which is not—we see that argument in letters from Ministers both of the previous Government and of the current one. However, courts make such adjudications all the time. We could equally say that under section 5, the courts must adjudicate between insult, which is criminal, and incivility, which is not. Criminal courts decide whether an activity is criminal—it is their raison d’être. All the arguments put up by this and the previous Government on why “insulting” cannot be removed from section 5 fall to pieces.
I am sure we all agree that free speech is a bedrock of true democracy. It encompasses the freedom to disagree and to challenge received opinion. We might not like what someone says and we might take offence, but lively debate and a robust exchange of ideas are integral parts of a true democracy. Lord Justice Sedley, in his landmark ruling in the case of Richmond-Bate in 1999, put it better than anybody. He said:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
In my view, the criminal law does not exist to protect people from feeling insulted. I urge Ministers to think about addressing section 5 of the 1986 Act in the Bill. They and no one else have the power to do so.
The JCHR, Liberty, Justice, the Christian Institute and Dr Evan Harris are calling on us to do something about section 5. I note the Liberal Democrats specifically referred to reforming the 1986 Act on page 93 of their manifesto last year. It is a Lib Dem idea that we would be wise to adopt. I urge such a measure on the House in the name of that most precious commodity—freedom of speech.
Mr Straw
I will pass lightly over the Hunting Act, if I may. I do not happen to agree with Tony Blair on that point. Although freedom of information requests can be irritating, especially if one is in government, I did not change how I operated as a Minister. It did not mean that I ceased to record my decisions or comments on submissions. As was brought out by the Dacre report, whichever party is in power there is a case for the proper protection of Cabinet discussions and collective responsibility—that issue might need to be reconsidered, because it has not worked out as intended—but I am in no doubt that overall the Freedom of Information Act has been a force for good.
In addition to those two Acts, we passed the Data Protection Act 1998. There had been no provision to protect people’s personal data before I introduced that Act in 1998. We also introduced extraordinarily important freedoms and protections for people who do not happen to have white skin, including in the Race Relations (Amendment) Act 2000 following the Lawrence inquiry.
I am sorry that the Home Secretary is not here, but while we are on the subject of freedoms, I would draw to the House’s attention the extraordinary difficulty that we had in providing freedoms for gay men and women by reducing the age of consent—equalising it at 16. The first attempt, which was an amendment to the Crime and Disorder Act 1998, was defeated in the Lords so strongly that we lost the whole Bill. I then had to introduce a further Bill containing simply a reduction in the age of consent to 16. That, too, was defeated in the Lords, and it was not until we used the Parliament Act that it got through, against vehement Conservative opposition, including from some in this Chamber—to the shame of the Conservative party—and a huge amount in the other place. So let us hear no more nonsense from the Conservative party or the Liberal Democrats suggesting that we in the Labour party failed to balance liberty and order effectively and properly. Yes, we introduced a number of measures on the other side of that equation, but most of those—as far as I can recall, all of them during my period—were actively supported by the Conservative party in opposition.
Tom Brake
I do not think that any Government Member is saying that the previous Government achieved nothing in relation to civil liberties. However, does the right hon. Gentleman agree that on the other side of the balance, in terms of what the Government did, were the fiasco over 90 days’ detention, control orders, blanket stop-and-search powers and some very draconian measures that went to the heart of threatening our civil liberties?
Mr Straw
I will deal with each of those measures in turn, and then come to the contents of the Bill. I will run through them in the order they appear in my notes. On surveillance measures, the Regulation of Investigatory Powers Act 2000 was introduced, again by me, to do what it says in the title—to regulate investigatory powers. My predecessor, now Lord Howard, had started that regulation. Before 1996, there was no regulation of those powers, and the most extraordinary situation obtained inside the police. They suited themselves whether to put microphones in walls. They had guidelines from the Association of Chief Police Officers, but there was no statutory supervision or proper regulation, and no account was taken of the equipment used. That was improved, to some extent, by my predecessor, and then comprehensively by RIPA. However, I accept that the provisions in RIPA have been used by local authorities, in respect of minor offences, in a way that was never intended, so I support the change proposed in the Bill.
I also support the change on wheel-clamping. I will have to look at some of the detail, but like my right hon. Friend the shadow Home Secretary I strongly celebrate the campaign by my right hon. Friend the Member for Doncaster Central (Ms Winterton), who has been promoted partly because of this and has now had to take Trappist vows as Opposition Chief Whip. I also strongly support a campaign that my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown) began on the elimination of all convictions involving consensual relations with gay men.
The hon. Member for Carshalton and Wallington (Tom Brake) asked me about counter-terrorism powers. Although we did not get everything right, the introduction of those powers needs to be seen in context. The Terrorism Act 2000 was approved by the House—I cannot remember where the Liberal Democrats were, but I remember that the Conservatives supported it. However, section 44 was intended to be used in a much narrower way than has been the case, so I have no objection to its effective redefinition in the Bill.
We got it wrong on 90 days—I am perfectly happy to say that—but it must be seen in the context of what happened on 11 September 2001. People were terrified, and the first responsibility of any Government is to secure the most fundamental liberty—the right to life. Of course, we still needed to have a balance, and we sought one, but we did not quite get it right. I am perfectly happy to say that. I simply say to the hon. Gentleman, however, that although the prescription in the Bill of 14 days is fine as a standard, the contortions in the Bill and in draft legislation that would provide for a reserve power of 28 days will prove impractical. The reserve power, which we all agree ought to be there, has to be used in circumstances in which it is virtually impossible for the Home Secretary to disclose the details. The full-scale parliamentary legislative process that would follow a recall of Parliament—you can bet your life that that is how it would happen, because that is how terrorists operate—would be the most extraordinary and mocking ever seen: the Home Secretary would have to come to the House and say, “I want this legislation to double the period of maximum detention, but I can’t tell you why.” It would be far better, in those circumstances, to say, “Here is a power for the Secretary of State for which he or she will be accountable in due time.” Given that he or she is the only individual in possession of all the information that should trigger this power, the responsibility for triggering it should rest with the Secretary of State by way of a special order.
Gareth Johnson
The hon. Lady makes a good point. The intention of the Bill is not to put off volunteers. I have worked on the governing body of an organisation that assists young children. We all joined in September and submitted our CRB checks at that time, but we did not get the results back until the following June, which highlights the farcical nature of the system. The Bill is about trying to strike a balance; we need to protect children without putting off the volunteers who want to work with them. The Bill is all about trying to find that sensible balance, and I suspect that the debate will largely centre on that today. There will be as many opinions on where that balance should be struck as there are people voicing an opinion. I believe, however, that the Bill gets it about right in balancing our basic right to freedom with protecting us from those who abuse freedom.
The Bill covers many issues but I will concentrate on just three. The first is the retention of DNA. The right hon. Member for Blackburn told the House how he had allowed his fingerprints to be taken to eliminate him from suspicion of committing a crime. That, however, was a choice that he was able to make, as distinct from the circumstances envisaged by the Bill in which people have no choice. Even if he had to face Mr Oddjob when giving his fingerprints, he nevertheless had a choice about doing so for the purposes of elimination.
Gareth Johnson
Of course the difficulty at the moment is that unconvicted people remain on the list, but the Bill’s proposals will ensure that such unconvicted people will not have their DNA on a list for ever and a day. That is the fundamental change that the Bill brings about.
Before the general election, there was general agreement between all political parties that the laws surrounding DNA retention had to change. The arguments centred on where the line should be drawn. Few would want every man, woman and child to be on the register, while few would want to scrap the register in its entirety. Generally speaking, the DNA register has been very successful, but we must find a balance between the two extremes.
At present, the only safeguard an innocent person has after arrest is that DNA can be removed from the register by the police in exceptional circumstances—and that is it. Being not guilty does not necessarily constitute exceptional circumstances. That is the difficulty. It is unacceptable if a completely innocent person can be wrongly accused, entirely cleared of any wrongdoing and not charged with an offence, yet their DNA is never returned and instead remains on the register. An innocent man is not an exceptional man, so his DNA remains on the register for life, which cannot be right. Those who preach that “if you do no wrong, you have nothing to fear” embark on a very dangerous journey where the state is master and the individual is subservient to those in control.
The second issue is the proliferation of CCTV cameras, and I shall again pick up a point made by the right hon. Member for Blackburn. I agree that constituents only rarely contact us to ask for fewer CCTV cameras. Our constituents are more likely to contact us to ask for more of them or for mobile CCTV cameras to be moved to their particular estate or house so that an issue of concern can be monitored. My problem is not with the idea of having more CCTV cameras; it is their non-regulated basis that I object to.
When CCTV first came about and the boom took place, we all expected some sort of code of conduct to be drawn up to which councils or any other public bodies would have to adhere. That will now happen if the Bill is successful and becomes an Act, and, in my opinion, it is long overdue. We need protection from the small number of abuses that can take place. Public confidence in CCTV systems is essential and an unregulated system is unlikely to convey public confidence for much longer. Currently, only the Data Protection Act 1998 provides any safeguards, but that legislation was not designed to regulate CCTV, so it is far from satisfactory for that purpose. As I say, I do not object to CCTV cameras, but to their unregulated use, and I am pleased that this Bill mirrors that view.
Finally, let me deal with the number of powers of entry currently in force. So many powers of entry create a confusing and complex system that is open to abuse. Those who want to abuse their position and enter premises illegally can hide behind our present multi-faceted system. There are so many ways of entering premises that it is often too easy for a property owner to assume that somewhere out there is a power to do so, although that might not be the case. How can occupiers know their rights when there are so many powers of entry and an inconsistent approach to dealing with how those laws came about? It makes sense to have a simplified system that is clearer to understand for both the occupier and those seeking access.
In my experience, requests for warrants of entry by the police are rightly open to vigorous inquiry, yet warrants of entry by utility companies, for example, are almost rubber-stamped. That inconsistency has to change. There will be many occasions when it is correct to have a right of entry, but the combination of so many different powers under so many different pieces of legislation makes it almost impossible for people to know where they stand. Estimates have been made, and the Home Secretary mentioned 1,200 different powers. That is an estimate—just that. Nobody knows exactly how many different rights of entry there are, so how can anyone be certain whether a person is acting lawfully when entering a property against the occupier’s will? Again, we require a balance in which property can be entered to protect against crime, but clarity and certainty also exist so that people are aware of their rights and obligations. That cannot occur in a system as complicated as the present one.
In conclusion, freedoms are easy to lose, but very difficult to claw back. This Bill seeks to empower the individual and lessen the control of the state. I want to see less government, not more. I want power to be vested in the individual and not the state, and I support this Bill’s attempt to further that cause.
Tom Brake (Carshalton and Wallington) (LD)
It is a pleasure to follow the hon. Member for Strangford (Jim Shannon), who made a sensible and measured contribution, as have other hon. Members. The right hon. Member for Blackburn (Mr Straw) made a fair assessment of what the previous Government had done. They improved some aspects of civil liberties through the Freedom of Information Act, but he also recognised that some measures had been extremely counter-productive. In any scenario in which a Government, over the course of their lifetime, introduce an extra 3,500 offences, there will inevitably be problems with how the police interpret and apply the rules.
Let me give just one example of how some of the powers introduced by the previous Government have been used in an unfortunate way. The example was given to me by a very good friend of mine who now sits in the other place, and whose son-in-law, who is black and from America, has stopped coming to the UK with his son, because every time he went out in London, irrespective of where he was going, he was guaranteed to be stopped by the police under stop-and-search powers. He did not want to have to explain to his son why his dad was being stopped every time they went out.
Clive Efford (Eltham) (Lab)
Will the hon. Gentleman explain why the coalition has taken away the requirement on police officers to record the ethnicity of people whom they stop on the street?
Tom Brake
I am sure the hon. Gentleman will be aware that many police forces intend to continue to seize that information. It appears that they are exercising discretion in that respect. He should reflect on the fact that his Government introduced those stop-and-search powers, which were applied in a blanket way across London and allowed the action that I have described to take place.
Although I welcome the announcement by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) that the Opposition will not vote against the Second Reading of the Bill, I think that the tone of her comments in relation to the Home Secretary were a touch patronising. I am sure that our Home Secretary fully appreciates the need to balance security with liberty and freedom. That is what the coalition Government are doing by presenting a Bill to restore personal freedoms that were threatened by the last Government, and to end excessive surveillance of individuals.
The right hon. Member for Blackburn seemed to acknowledge that some of the policies implemented by the last Government were—if not draconian—an infringement of the rights of the individual, expensive, and in many cases ineffective. The Deputy Prime Minister was right to describe the Bill as a rolling back of the state. However, although I will not over-hype it, because I trust that many of the measures referred to by the hon. Member for Gainsborough (Mr Leigh), who is no longer in the Chamber—[Interruption.] He is, in fact, present. I trust that many of the measures that he mentioned will be subject to a protection of freedoms (No. 2) Bill, because I do not see this as the endgame when it comes to protecting our freedoms. I believe that we cannot place too high a value on liberty and freedom.
The Bill has received support from a number of quarters. The Law Society, for instance, has described the destruction of DNA profiles of innocent people as “an improvement”, welcomes the reduction in the maximum pre-charge detention time, and believes that the new stop-and-search powers are “far more proportional”. It has listed a number of other proposals that it supports, including the changes in the vetting and barring system.
The Bill proposes regulation of biometric data, and I am pleased that we are adopting the protections of the Scottish model in regard to retention of DNA and fingerprints. Although the Bill will not ensure that all innocent people are removed from the DNA database, it will ensure that hundreds of thousands of those who are currently on it are removed from it. In Committee, those who have received a briefing from the Forensic Science Society will want to examine aspects of the deletion process to establish what deleting a DNA profile means and what constitutes the totality of such a profile.
Rehman Chishti (Gillingham and Rainham) (Con)
As one who practised at the Bar before becoming a Member of Parliament, I know that the whole ethos of the DNA database was that the data of those found innocent of offences should no longer be on the record. Does the hon. Gentleman agree that the system used to be administered in a shocking way? Half a million records on the database were completely wrong: names and details were false. Although the Bill contains much that is welcome, we must ensure that the database is fully and thoroughly managed.
Tom Brake
Of course we must. Whenever a massive database is introduced, there is significant potential for errors such as mismatches to be hidden in it. I hope that the Committee stage will provide scope for further examination of the details relating to the database. I am thinking particularly of the retention of children’s DNA. In its briefing, Liberty expressed concern about the fact that a child who was caught shoplifting at the age of 10 and again at the age of 12 would remain on the database for the rest of his or her life. If Liberty’s understanding is correct, that makes me extremely uncomfortable.
I am pleased that children will no longer be fingerprinted in schools. I am astonished that schools have never been required to seek permission for that from parents. As for the regulation of surveillance and CCTV, my experience is similar to that of the right hon. Member for Blackburn and others who have spoken today. The most frequent request that I have received as a Member of Parliament has been for additional CCTV systems, but many people have approached me expressing concern about, for instance, the fact that CCTV cameras were pointing straight through their front windows, or their bedroom windows, from premises opposite. I believe that better regulation could solve the problems that have been reported to me, and I therefore welcome the proposals in the Bill.
Jim Shannon
In my experience, when CCTV has been introduced in what might be described as hot spots where there is plenty of antisocial behaviour such as violence and robbery, there has been a marked reduction in the number of such incidents. Does the hon. Gentleman share that experience?
Tom Brake
I certainly think that CCTV deals partly with the fear of crime. However, I know from the results of an inquiry conducted by the Home Affairs Committee that its effectiveness in cutting crime is not so clear-cut. It obviously makes a difference in, for instance, car parks, but it is less obvious whether it makes a difference on a wider scale. The evidence may not be as strong as Members wish it to be.
I am pleased that we are considering the issue of automatic number plate recognition systems. I have raised with Ministers in the past the extent to which bailiffs and private contractors can use such systems, and have suggested that more regulation might be necessary. In Committee, we will doubtless wish to clarify the relationship between the Information Commissioner and the surveillance camera commissioner to ensure that there will be no overlap between them. The regulation that is being discussed at present clearly relates to CCTV in the public sector, involving local authorities and police, but that constitutes a relatively small proportion of the CCTV that is available. We may have to consider whether the boundaries specified in the Bill should be extended.
An issue that is closely related to the issues of CCTV and ANPR systems is that of the use of identification systems in pubs and clubs. Like, I suspect, a number of Members, I took up an offer a couple of weeks ago during special constables week, when we were encouraged to go out with our local special constables to observe their valuable and committed work. On Friday night I spent some time in Sutton high street, visiting pubs and clubs virtually all of which were using systems that captured people’s ID—typically, their driving licences. I know that there is significant concern among the police about the extent to which any of those systems comply with the relevant data protection legislation by ensuring that the data that they capture are secure and are handled in an appropriate manner. I realise that that may be beyond the scope of the Bill, but I think that the Government could usefully consider it.
As for counter-terrorism, Members will know from what I said earlier about stop-and-search powers that I am pleased that they will be much more tightly defined. I also welcome the reduction in the maximum period for pre-charge detention from 28 days to 14, although organisations such as the Law Society and Liberty want to push us much further and faster in that regard. I consider 14 days to be a good starting point, but I am happy to leave open the option of introducing a shorter period.
In relation to terrorism prevention and investigation measures, which are being dealt with separately to some extent, let me say as an aside that I hope we will be given more clarification of precisely what is being proposed. I do not want control orders to be replaced by something that looks very much like them. I should also like clarification of what will replace curfews, and I want to know that what we propose as a Government is a system that will focus on securing prosecutions rather than simply containing people.
On safeguarding vulnerable groups and criminal records, I welcome the fact that the vetting and barring scheme will be changed, and that 9 million people will be taken out of the scheme. Simply classifying and categorising people does not guarantee safety, and creating massive databases does not necessarily provide a solution to all the security and safety problems. We have to be more subtle and sophisticated than that.
I welcome the changes on consensual gay sex, and I am sure the Minister is aware of the concerns that, as far as possible, every single record that relates to that previously illegal activity should be deleted. I know there are challenges in terms of how to go beyond cleaning electronic data, but I hope that that can be dealt with comprehensively.
The freedom of information changes are very welcome, although not all aspects of the freedom of information ten-minute rule Bill that I have pressed on two separate occasions in the last three or four years will be picked up. I hope they will be, perhaps in the protection of freedoms (No. 2) Bill, when we get round to that in, I hope, the second half of this Parliament. I do not see any reason why very large private sector organisations that are, in effect, doing public sector work should not be subject to FOI in the same way as the public sector. If they are simply taking on what was previously done by the public sector, to which FOI legislation would have applied, it would be appropriate for it to apply to private sector organisations now doing that work.
I welcome the fact that we will preserve trial by jury and that we are restoring such rights.
In the past couple of weeks, we have watched with astonishment the courage, bravery and thirst for freedom of the Tunisians, Egyptians and Libyans, who have been desperate to embed some of the most basic freedoms in their societies. We have a more straightforward task. We have started the process of restoring some of our most cherished rights in the Protection of Freedoms Bill, and will, I hope, continue that process in the protection of freedoms (No. 2) Bill, which I hope will be introduced in the second half of this Parliament, and which I would expect to pick up on some of the issues raised—such as what the hon. Member for Gainsborough said about free speech, so that the concerns of Dr Evan Harris about removing the word “insulting” can be addressed.
We must maintain the momentum. With freedoms, we can never afford to stand still; we are always swimming against the current. This Bill demonstrates that the coalition is starting to reverse the tide, and that an unprecedentedly great rolling back of the state is under way.
Nicola Blackwood (Oxford West and Abingdon) (Con)
My hon. Friend the Member for Gainsborough (Mr Leigh) is no longer in his place, but I hope he will forgive me for being here in place of my predecessor, and perhaps the fact that I share his concerns about section 5 of the Public Order Act 1986 will act as some consolation.
It is a joy to have the opportunity to speak in this debate on another coalition move to try to redress the current imbalance between security and civil liberties. All Governments must, of course, be fully committed to public safety and protecting victims of crime, but under the previous Government far too many of our liberties were sacrificed in the name of apparent short-term securities. In too many cases, the previous Government acted before establishing a causal link between that sacrifice and the claimed “greater security”. In the absence of the necessary evidence or, in some cases, even public debate, actions including the indefinite retention of DNA of children never convicted, the creation of more than 500 new powers of entry and the careless scattering of a patchwork of surveillance powers across the statute book, not to mention the spectre of 90-day detention without trial, all left us wondering whether some members of the previous Government had had a “common sense-ectomy”. Even the Human Rights Act 1998 cannot make up for the disproportionate and draconian measures that they introduced.
In that context, I am pleased that the coalition Government are living up to their promise to cut back on the previous Government’s aberrations and to begin restoring the civil liberties that for so long defined British democracy. I apologise if that language seems hyperbolic, but let us think for a moment about the mother who finds herself being spied on by her local authority because she has said that she lives in a certain school catchment area; the child who needs an iris scan to borrow a library book; or the archbishop who finds himself the subject of five Criminal Records Bureau checks, not to mention the innocent man who suddenly finds himself without the right to a trial by jury. Given that the Labour party is so apparently committed to human rights, I find it inexplicable that that state of affairs should have ever arisen. Thankfully, we can always rely on the electorate to draw the line when their Government lose their grip, and I am greatly reassured that the coalition Government have been so prompt in introducing this Bill. As must be obvious by now, I support its intentions and I would have been voting for it today had the Opposition decided to push for a vote.
I would, however, like to take this opportunity to raise a few points of detail with the Minister. Nobody is questioning the fact that DNA can play an invaluable role in crime detection, but under Labour a new profile was added to the new DNA database every 45 seconds. Unsurprisingly, the Home Office had to admit that the database contained more than 500,000 false or wrongly recorded entries. The new biometric data retention regime proposed in part 1 seems to strike the right balance between greater proportionality and targeting, while still protecting the public from those who would commit heinous crimes. That is a great step forward and the regime seems likely to meet the requirements of the European Court of Human Rights ruling. However, I am unclear why the Government have not chosen to distinguish between an adult and a child who is charged but not convicted of a serious crime. In general, legislation does make the distinction between the adult and the child. Childhood convictions are considered spent in half the time of those of adults, childhood lawbreaking has not been found to be necessarily indicative of future behaviour, and the principles of restorative justice are now commonly associated with youth justice. It would be helpful if the Minister could clarify the decision-making process on that point.
Secondly, except in the specific case of an application for extended retention to be heard by the magistrates court with right of appeal for both sides to the Crown Court, I am unclear whether there is a right of appeal to a judicial or otherwise independent body for individuals who feel that their biometric data have been retained unlawfully or inappropriately. I have no doubt that many colleagues have had the same experience as I have of constituents whose data have been taken and retained in error. I even have one constituent who was inaccurately registered as a sex offender for 15 years owing to a clerical error. We cannot overestimate the damage that this sort of error can cause to a person’s life. It is vital that a clear route of appeal and system of remedies are available to innocent individuals who get accidentally caught up in the system.
I am also a little unclear where the new regime will sit in relation to the Association of Chief Police Officers guidelines. I am particularly concerned that there should be clarity about the role of the “exceptional case procedure” in the new system. As the Minister knows, the guidance states that an individual’s record will be retained until that person has attained 100 years of age but it may be removed before this date by way of the exceptional case procedure. The guidelines state:
“Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC ‘owned’ by them”
but only
“in exceptional cases.”
Those might include
“cases where the original arrest or sampling was found to be unlawful”
or cases
“where it is established beyond doubt that no offence existed”.
I believe it is helpful for chief officers to have some degree of discretion, especially in relation to scenarios outlined in the exceptional case procedure. I am anxious to learn how such circumstances are to be addressed under the new system.
Finally, on part 1 of the Bill, I welcome wholeheartedly the regulation of schools’ retention of biometric data, especially the requirement for the consent of the parents and the child before such data are recorded. I do not understand why schools need to retain these data and I was rather shocked by the Library’s estimates that 30% of secondary schools and 5% of primary schools already use such biometric systems. I would like to see official figures on this issue so that policy in this very sensitive area can be made on the basis of evidence. Is the Minister considering requiring schools to notify the Information Commissioner’s Office if they intend to hold such data, and if not, will he tell us why not?
The surveillance regulation proposals in part 2 are well overdue. No one challenges the value of well-located, targeted surveillance, which has undeniable importance for crime detection and public safety, but there has been an exponential growth of CCTV and automatic number plate recognition systems, which has for the most part taken place outside formal regulation. The UK now has an estimated 5 million to 6 million surveillance systems. The British Security Industry Association claims that state-owned CCTV accounts for less than 10% of these and that
“it is the privately owned surveillance systems that provide the majority of evidence in prosecutions.”
It would therefore be helpful if the Minister clarified how the new code of practice will apply to privately owned systems and whether the “relevant authorities” mentioned in clause 33 will include private owners whose surveillance systems cover public areas.
Nicola Blackwood
I cannot imagine why the Government’s understanding where surveillance systems are held and who holds them could in any way limit the improvement of justice in this country.
I also welcome the proposals in part 3 to insert judicial oversight in relation to the Regulation of Investigatory Powers Act 2000. This is an excellent start in reforming the confusing jumble of legislation dealing with access to communications data. However, we have some way to go before we have a system which tightly defines the reasons for which access can be granted—a particularly vague example of which is
“the economic well-being of the United Kingdom”—
and which offers a straightforward legislative framework so that not only the bodies that use surveillance powers but the citizens who may be subject to them can clearly understand their rights and responsibilities.
I could go on and welcome the permanent reduction of pre-charge detention to 14 days, the reinstatement of the right to trial by jury and the progressive proposals on stop and search without suspicion, but the point is clear. In large part, the Bill returns the state’s powers to common-sense levels and signals a significant step forward for the civil libertarians among us. The Bill is the answer to the calls of many in this country, including those who had felt, under the previous Government, that state abuse of power had reached a new low, that they had become guilty until proven innocent or that they were being forced to make a false choice between democracy and security. Of course there is a difficult balance to strike between liberty and security, and any adjustments need to be made with the utmost care, but there can be no doubt that in the past decade that balance had tilted much too far in the direction of security and away from civil liberties. That is why I support the Bill and hope that it will mark the end of the Government-sponsored fallacy that absolute security can be achieved by the unacceptable erosion of civil liberties.
David T. C. Davies (Monmouth) (Con)
We have heard from many people on the Government and Opposition Benches for whom I have the utmost respect, including from my hon. Friend the Member for Witham (Priti Patel). However, I do not share the enthusiasm of all Government Members for all aspects of the Bill. There are many parts with which I heartily agree, and we have heard a few examples of areas where the current legislation has gone wrong.
Years ago, I was involved in a case in the Welsh Assembly in which a bus driver who worked for a company that undertook school bus runs was told that he might lose his job because 20 years previously he had incurred a minor conviction for shoplifting or a drink-related offence at the age of 19. For 20 years, he had lived a perfectly good life and suddenly he was about to lose his job over that minor offence. Clearly, such examples are totally and utterly disproportionate and I hope that we will do something about them.
I am less keen when I hear people talking about a police state. I declare an interest as a serving special constable in the British Transport police. I assure Members that when I go out it does not look like a police state. I have conducted many section 44 stop and searches, and I do not recognise the descriptions that have been given. I would challenge the hon. Member for Carshalton and Wallington (Tom Brake), who is not currently in his place, to ask the gentleman who says that he was stopped and searched every time he stepped out on the streets of London to produce the written evidence. Written evidence there most definitely will be, because every stop and search of that nature required about 20 minutes of paperwork.
One problem with section 44 stop-and-searches was that they were carried out entirely at random and were never actually picking people up. The police officers themselves were not enthusiastic about doing them, because they knew that they would annoy a member of the public who was probably not doing anything at all, incur at least 20 minutes of paperwork and be most unlikely to get anyone for anything.
Section 44 is going, which is fine, but the Government ought to consider the fact that the other stop-and-search legislation is not adequate to catch people who are clearly breaking the law. For example, on many occasions— I assure Members that I mean many, many occasions—I have stopped people for committing offences that were never going to be arrestable. The first thing that a police officer does in that situation is to check whether the person in question is known to the police for anything and whether they have a previous record. Very often it turns out that they do, and that there are warning markers indicating that they regularly carry knives, guns, drugs or other illegal paraphernalia.
At that point, faced with somebody who has committed an offence that will not get them arrested—perhaps begging or abusive language—but who regularly carries guns, knives or drugs, one would think that the officer would have the power to search them, but they do not. Unless the police officer can actually see the knife or drugs sticking out of a pocket, there are no powers to search somebody. The officer cannot take account of a person’s previous record. If we are going to get rid of section 44 stop-and-search powers, which is absolutely fine, we should at the same time ensure that people who are likely to commit offences or carry illegal apparatus can be properly searched.
We need to let the police know that when they see people acting suspiciously, they will still the have the power to stop and search. A lot of police officers, myself included, having undergone courses such as the behaviour spotting one—it is called BASS, but I will not bore Members with the details of what that means. It is about spotting people behaving in a suspicious fashion. Many police officers I have spoken to still feel uneasy about simply going up to somebody to stop and search them, even if they have been displaying obvious signs of acting in a manner that is likely to mean they were about to commit an offence.
Members of the public might feel that the police are for ever stopping and searching them—every time they go out on the streets of London, according to one Member—but police officers actually feel very nervous about going up to people to stop and search them. They feel that they are likely to get complaints if they do so. I hope that my hon. Friend the Minister will think about that. I have tabled amendments in the past suggesting that officers should be able to take account of somebody’s previous criminal record in deciding whether to conduct a stop and search, but I have not succeeded thus far. I do not know whether I have any more chance under the current Government than under the previous one—I suspect possibly not.
Tom Brake
The hon. Gentleman has referred to me both since I came back into the Chamber and, I understand, while I was not here. I would be very happy to introduce him to the baroness in question at the other end of the building, who will explain to him precisely what her son-in-law experienced. Then he will be able to make his own judgment.
David T. C. Davies
I would be delighted. I believe the hon. Gentleman said that every time that baroness’s son-in-law set foot on the streets of London, he was stopped and searched. The first thing that I would ask him would be, “Did you ask for the copies of the pink slips that have to be lodged every time you are stopped and searched?” If he was stopped and searched there will be a record of it, and we should be able to prove whether that happened every time he set foot on the streets of London. I look forward to pursuing the matter.
The issue of previous criminal records brings me to that of DNA, on which I have some sympathy with Opposition Members. I do not think that there was anything fundamentally wrong in collecting people’s DNA. I have done it myself, and I will be quite honest in saying that I am not sure that the Government have got it right. I asked the Home Secretary earlier whether she accepted that, as a result of the change, people who had committed crimes would be able to get away with it. She said that that was not true. I have the utmost respect for her, but I am very direct and I must say that I do not believe that and cannot accept it.
We see in the Bill that the Government have decided that anyone who is arrested for specific types of offences—terrorism, drugs, violence, rape and that sort of thing—will have their DNA kept indefinitely if they have a previous recorded offence. The Government recognise that keeping people’s DNA is useful when they have been arrested for offences such as murder, rape, violence or terrorism even if they are not convicted, which I welcome. However, it surely follows, therefore, that DNA can also be useful in respect of less serious offences, such as burglary or taking a vehicle without consent. We should make it clear to members of the public that we are increasing their rights and liberties, but that there is a cost—that is obvious, and we should be honest about it. One cost is that some burglars and car thieves will not be caught.