House of Lords
Thursday, 9 October 2008.
The House met at eleven o'clock: the CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool.
My Lords, the United Nations estimates that there are now 4.8 million displaced Iraqis. This includes 2.8 million internally displaced people within Iraq and a further 2 million refugees in surrounding countries, the majority of whom are in Syria and Jordan.
My Lords, I thank the Minister for that reply. Perhaps I may ask about one small group of that vast total—the interpreters who have helped the British in Iraq. Did he hear, or have reported to him, the BBC programme on Monday on one of the interpreters, forced out to Syria, who had worked for a British newspaper for four years and who, because of that, received death threats and his brother-in-law was kidnapped and murdered? I raised this case behind my Question in April of last year. Is it not shaming that the British refused him entry to this country and that it was left to the Americans to resettle him? Is it not, sadly, typical of the restrictive way we have treated the interpreters who have worked for us and helped us so much?
My Lords, I must apologise for not being familiar with that individual case. I am familiar with the overall scene, however, and I believe that the United Kingdom’s record in this matter is very good. The Foreign Secretary announced a scheme in October 2007 particularly to address these individuals. More than 20,000 people have worked for the United Kingdom in Iraq, but only 700 have worked in a close and sustained way and hence are qualified for consideration. One thousand one hundred have applied for handling under the scheme; 500 were eligible, 72 are now in the UK, 103 will come in the next few months, 144 are in the final stages, and more will follow. Fifty per cent of the eligible people chose to take a financial option and stay in Iraq, and that must be good for Iraq.
My Lords, what response did European Union Foreign Ministers give at their meeting on 25 September to the appeal from the United Nations High Commissioner for Refugees, Mr Guterres, not to return people to central and southern Iraq where, he said, the necessary conditions of stability and security have not yet been achieved? If people are to continue being repatriated voluntarily, does the Minister agree with the Iraqi Parliament Committee, which recommended a budget of $4 billion to be spent by Iraq on resettlement and rehabilitation in place of the paltry $50 per head that has been allocated?
My Lords, the only part of that question I am briefed on relates to the internally displaced refugees. We do not believe that tackling the issue of internally displaced refugees is substantially a matter of money. The Government of Iraq can help with these things and have the resources to do so. We welcome the fact that they are spending $213 million on this scheme, and we welcome the improvements in security. However, at the end of the day, the issue is about progressing such returns when the security situation improves for the long run. We believe that co-ordination and co-operation with humanitarian agencies and the United Nations is the answer, and we think that United Nations Resolution 1830, to assist the most vulnerable Iraqis, is the way forward. We will work with the Government of Iraq and the United Nations on this issue.
My Lords, will the Minister give an undertaking that, when he leaves the Chamber, he will go to his computer, get on the BBC iPlayer and listen to “The Choice”, the programme to which my noble friend referred? When he has done that, will he then have a discussion with his officials as to whether it was right to put in his answer that our record on the handling of these interpreters is a good one?
My Lords, a report by the ODI in March this year stated that the international humanitarian action in Iraq since 2003 has,
“been piecemeal … hindered by insecurity, lacked coordinated funding, had limited operational capacity and patchy information”.
Will the noble Lord take some responsibility for the Government’s part in this failure?
My Lords, the whole international community must recognise the features of the response that has been set out. The Government are pressing for, and have achieved, a unified approach through the United Nations. The United Nations is drawing those strands together, which will allow better delivery, and we accept that that is the way forward. Iraq is not a poor country; the crucial thing is to help the Iraqis, through technical help and training, develop the capacity to look after their own people and also help their neighbours, who are looking after the refugees.
My Lords, we are grateful to Syria and Jordan for their hosting role. There is some modest help in the form of £3 million to the UNHCR, which is working in those countries. The issue is getting sight of where these people are and getting them registered. At the moment, the United Nations and the host countries are coping; they are providing primary healthcare, particularly in Jordan and Syria. The key step forward is, once again, for the Government of Iraq to start to shoulder their responsibility. They have already given $15 million to Syria and $8 million to Jordan. The European community is also helping—it gave nearly €49 million in 2007.
My Lords, does the Minister recognise that the case raised by my noble friend suggests that the wrong judgment was made? If officials cannot make the right judgment—and they cannot always do so—will he at least ensure that where there is a case which is clearly very sensitive they refer it to Ministers for decision rather than taking a decision themselves?
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a non-pecuniary interest as president of the Haemophilia Society.
The Question was as follows:
To ask Her Majesty’s Government what review was undertaken of the extent and depth of deprivation in the haemophilia community before the decision was taken to cut the Haemophilia Society’s core grant by 70 per cent.
My Lords, the department is very much aware of the importance of the work of the Haemophilia Society. Indeed, we have funded the society for more than 10 years. In 2006, this funding provided 14 per cent of the society’s overall budget. However, Section 64 grants are not intended to be permanent sources of core funding for organisations, thus the tapered reduction over three years to 2010.
My Lords, I am grateful to my noble friend. Is she aware that 1,757 haemophilia patients have now died in direct consequence of infection with HIV and hepatitis C through contaminated NHS blood products in what my noble friend Lord Winston described as,
“the worst treatment disaster in the history of the National Health Service”?
Is she further aware that many are terminally ill, unable to work and uninsurable, except at prohibitive cost, while the widows of many of those who have died receive no compensatory help whatever? Finally, is she aware that the Haemophilia Society, which exists to support this stricken community, now faces closure as its core grant reduces from £100,000 to £30,000? I know that she will want to help all that she can.
My Lords, I pay tribute to my noble friend’s work and commitment in this field over many years. In 2006-07 and the preceding eight years, the Haemophilia Society received £100,000 annually. This is now reducing over three years to £30,000 in 2010, so, this year, the society will receive £60,000. It is clear that the transition process from core funding is proving a problem for the Haemophilia Society. The department has provided for this event and will consider capacity-building requests for funding to develop more sustainable funding streams, generate income through trading activities and develop the capacity to work in partnership. We will also fund specific projects such as Young Bloods, which is a good example of how the society has secured funding to focus on the needs of children with bleeding disorders, amounting to £110,000 over three years. I am, however, happy to make a commitment to my noble friend to ensure that further discussions take place with the Haemophilia Society.
My Lords, I, too, declare an interest as a vice-president of the Haemophilia Society. Is the Minister aware that one of the society’s campaigns focuses on blood safety? Is not safety in health one of the top priorities? Does she not consider the society to be a special case? We are talking not only about people with HIV and hepatitis C, but also about people with variant CJD. They really need support and help from their society.
My Lords, the department has absolutely no doubt that the Haemophilia Society is a very important organisation in supporting that community. The Government are certainly committed to supporting the society. We need to find a proper way of doing so that ensures that its work can develop and be sustained over a long period.
My Lords, I readily understand that Section 64 grants are not appropriate in this case and never have been. However, the Department of Health gives the impression of being awash with money. Can it not find some other source of funding for this very desirable objective?
My Lords, as I said in my original Answer, the Government’s funding amounts to only 14 per cent of the Haemophilia Society’s budget. The organisation is very successful in raising funds from corporate and other charitable sources and from its trading activities. We are committed to helping it to make sure that those sources of funding are more sustainable and grow in the long term.
My Lords, it would be helpful if, in appreciating the importance of the third sector more generally, my noble friend could indicate whether the planned changes to the funding of the third and voluntary sectors will have a negative impact on the working relationships between those sectors and the directorate.
My Lords, that is an important question, as it affects not only the Haemophilia Society but a lot of voluntary organisations. The department is a major supporter of the voluntary and third sectors; indeed, £17.2 million goes to third sector organisations. The key change is that the Department of Health is committed to full cost recovery, which is what voluntary organisations have wanted for a long time. That means that third sector organisations can recover the appropriate amount of their core costs, proportionate to the activity that the department is funding. That in time will, as it should, reduce the need for organisations to have a dependency on core grants, which will add to their effective lobbying function, as it will make them more independent.
My Lords, is the Minister aware that over recent years there has been a big loss of community services? With those community services we have lost district nurses and health visitors, some of whom used to specialise in conditions such as haemophilia, sickle cell anaemia and diabetes—all those long-term conditions where patients need extra help and back-up. If funds are cut to voluntary organisations such as the Haemophilia Society, which has done such fantastic support work, how will she ensure that patients still get the support that they need?
My Lords, the Government are determined to ensure that people with haemophilia, for example, are increasingly well cared for and supported within their communities. We work closely with the Haemophilia Society and professional organisations to ensure that, for example, 24-hour counselling services are available. Those are provided through a mixture of statutory funding and voluntary commitment at a local level. Part of the commitment in the reorganisation is that more funding is available at a local level to provide exactly the services that the noble Baroness mentioned.
Afghanistan: National Army
My Lords, we welcome the recent decision taken by the Joint Coordination and Monitoring Board to increase the size of the Afghan national army from 80,000 to 122,000. Building Afghanistan’s capacity to provide security for its people remains key to success. The UK therefore supports ANA expansion both of its combat capabilities and in key supporting elements such as engineering, intelligence and logistics.
My Lords, I am grateful to the noble Baroness for that reply. The ANA is absolutely vital to the future of Afghanistan; there will never be a successful Afghan Government without a successful army. However, the Taliban are luring huge numbers of defectors from the ANA by doubling their very low pay. In the light of all the money pouring into Afghanistan, what assistance are Her Majesty’s Government giving to the Afghan Government to ensure that ANA soldiers are fully and regularly paid?
My Lords, there has been no problem recruiting people to the Afghan army. The difficulty is making sure that we have a spread across the country of people with different backgrounds speaking different languages. The US directly takes on responsibility for payment of the army but we put in quite a significant sum both in the assistance we give and in direct help for security sector reform. We have spent some £37 million on that in the past five or six years. That has gone to specific targets both at the national level, to ensure that the structures there are correct, with a national security adviser, and at the more localised level.
My Lords, if it is accepted that we cannot win this conflict through straightforward military means alone, what are the Government doing to enhance the position of the Afghan police force, which is largely locally recruited and apparently has major problems with corruption? Could not the successful army models be applied there?
My Lords, the noble Lord is right to say that winning the situation in Iraq is not only a military issue, it is also about development, good governance and the rule of law; and assisting in the building of a successful police force is very important indeed. At present, 80,000 people in the Afghan national police force have been trained by external advisors. There is a problem with capabilities and there have been problems of corruption, but we are helping as are many other countries. This is one of the areas where burden sharing could contribute more to helping the situation.
My Lords, what we are doing on training, mentoring and helping on the ground to create the right structures is extremely important. There is not in Afghanistan a tradition of a successful police force as we would recognise it, so an awful lot of work has had to be undertaken. As I say, 80,000 people have been trained, but they are not all functioning at the level that we would expect. There is a lot to be done on the police force and on the army. We have made more headway with the army so that the defectors are not as numerous as they were. Recruitment is not a problem, as I said, so it will be possible to reach the target figures on expansion from 80,000 to 122,000. It is not expected to happen overnight but to be rolled out over the next six years or so.
My Lords, aside from building up the Afghan national army, do Her Majesty’s Government support the views of the American commanding general, General McKiernan, that this whole situation will need a considerable increase in troop commitments by NATO, by the Americans and by all others, and that it will take many, many years to deliver the kind of success on the military side alone that will allow some political success as well?
My Lords, I think that the discussions we had on Monday showed very clearly that this is not simply a military operation, and it is not one that will be achieved very quickly. As I mentioned earlier, we must have good governance and the rule of law, something which is not yet established throughout Afghanistan. So we have to contribute to the situation on many fronts, including economic development. We cannot do that alone, so we are doing it with a wide range of nations; I think that 40 nations are involved in the effort in Afghanistan. We are contributing significantly both in policy terms and on the military side. It will not happen overnight, but the structures that we are putting in place—in the current discussions in Budapest, for example—will help to consolidate our position.
My Lords, the Afghan national security forces took over responsibility for Kabul on 28 August. That was a significant step forward and shows the improvements that they have made in the past few years. As a result, some of the insurgents have attempted to test just how good they are and how resilient they can be. That is why we have had an increase in attempts in the surrounding area to try to destabilise this step forward. We are still offering mentoring and training as part of the ISAF force in that area. It is important that we continue to do so throughout Afghanistan because the Afghan national army will not be able to take over all responsibilities within a very short timescale.
Police: Metropolitan Police Commissioner
My Lords, the current appointment procedure gives the Home Secretary responsibility for making a recommendation to Her Majesty, having regard to views from the Metropolitan Police Authority and the London mayor. The Government believe that this is the right procedure. The commissioner’s role is critical for national security, while policing in London also plays an essential part in public protection of the rest of the nation.
My Lords, did my noble friend hear the “Today” programme this morning, in which the Mayor of London said that crime was down across the board but went on to say that under Sir Ian Blair the operational efficiency of the Metropolitan Police had been compromised? If the Mayor of London can force out the most senior police officer in the country, what prospects are there for appointing the best police officer for this job in future? Surely that sort of power, exercised unaccountably by the Mayor of London, is unacceptable?
My Lords, my noble friend raises a number of interesting points. It is clear that there is a mechanism and a way of doing these things which is there for very clear reasons of fairness, and to ensure that there is no political impact on this decision-making. I listened to the “Today” programme. The Mayor of London rather reminds me of a lovable Labrador puppy. He is a bit Tigger-like and very enthusiastic, but he does not always necessarily think through the consequences of what he has done. There is no doubt that Sir Ian Blair delivered a number of good things. If the mayor had doubts in some areas—there has been a whispering campaign and statements have been made about this—he should have talked to the MPA. If it agreed that there was a problem, it should have made that point to Sir Ian Blair, who could then have made representations, which is absolutely appropriate. If the MPA decided he needed to go, it could then have discussed the matter with the Home Secretary. That is the proper way to do things, rather than just removing him.
My Lords, the noble Baroness raises a good point, but I think this will be addressed in the Green Paper, on which there has been much discussion in recent months. That discussion finishes tomorrow. We will be looking at this area. It is an area of risk that has come up in the discussion, but clearly one has to act sensibly on occasion; this is not for the worse but a good thing. However, I have no doubt that this was a knee-jerk reaction, which was not sensible and should not have been done.
My Lords, if the mayor took the wrong decision, and if the Government’s position is as indicated by the Minister, why on earth did not the Home Secretary refuse to accept it? It is her appointment. Are not the Government hiding behind Boris Johnson’s courage in doing the right thing for London?
My Lords, one should think of what actually happened. As I understand it, the mayor said to the commissioner, “If you don’t go, on Monday I will find someone to ask me, with the media there, whether I have confidence in you and, if they do, I will say that I haven’t”. It was made very clear to Sir Ian that he did not have the mayor’s confidence and that the mayor wanted him to go. I think that Sir Ian Blair went away and thought about this and felt that it was impossible for him to go on. The Home Secretary could have struggled and struggled to make him stay, but I quite understand his position, and I do not think it would have been sensible to try to make him stay in that situation. We should not have arrived at this position. There is a correct procedure to go through and it is absolutely right that that should have been gone through. What happened was not fair and it is not the correct way to do things. I am afraid that it was a knee-jerk reaction. If he had gone through the correct procedure, perhaps all of us would be content. That is what he should have done.
My Lords, does the Minister recognise that there has to be an extremely close working relationship between the democratically elected mayor—a post that was, of course, set up by this Government—and the Metropolitan commissioner, and that what is important now is to find a commissioner who can restore public confidence in the Metropolitan Police, as that confidence has been severely battered over the past few months?
My Lords, the noble Baroness is absolutely right that we must now move ahead and find a new commissioner in whom everyone has confidence. I was rather disappointed to find that the mayor was suggesting that there should be a long continuum with the deputy, Sir Paul Stephenson, standing in, and that this should go on for a prolonged time. Indeed, he said very clearly in his discussions with Sir Ian Blair that he wanted to have a long continuum. That would be very wrong. The head of the Met has very clear responsibilities in terms of counterterrorism as well as the important duties he has in London and a whole raft of other duties. That is why it is essential that we move as quickly as possible. We need to go down the correct route of appointing him, and we have already started that. My right honourable friend the Home Secretary has already written to the mayor and the MPA saying that we need to start this process. We need to move quickly, but even if we move as quickly as we can, it will take about six or seven months; that is what it took the last time.
My Lords, he may well have said that, but I have it from another very good source—everyone seems to have good sources—that he did want to do that. I have seen a letter from him, from which I will not quote, in which he says that he wants to extend that time. I am afraid that, although he might have said this morning that it was piffle, that is not correct.
My Lords, while I appreciate that it is very difficult for the Minister to comment while the inquest is ongoing, does he accept that none of this discussion would now be necessary if Sir Ian Blair had done the honourable thing at the time of the Jean Charles de Menezes tragedy and resigned then?
My Lords, clearly, I cannot speak about the inquest. As noble Lords know, the Metropolitan Police Authority had a vote of no confidence in Sir Ian Blair on 22 November. There was a long debate, at the end of which it voted 15 to seven against that. That is all I can say about that, because of the inquest that is going on at the moment.
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Power to remove documents for examination]:
1: Clause 1, page 1, line 8, leave out paragraph (b)
The noble Baroness said: This is a probing amendment to try to ascertain the extent to which new powers to remove documents are necessary following arrest. Most of the searches covered by Clause 1 already allow for documents to be seized. I give as examples Section 43(4) of the Terrorism Act 2000 and paragraph 1(1)(c) of Schedule 5 to the same Act. Are there shortcomings in that Act that these new powers are designed to address?
I understand that it could take time to ascertain whether a large bundle of papers or a computer drive might need to be examined away from the scene of an investigation. I do not take issue with the principle, but I would like to be satisfied about the extent of the powers and whether they are really necessary. I would be grateful if the Minister could give an example of when the powers might be used. We see this power principally being exercised against those who are being searched but who have not been arrested, because it would allow an opportunity to remove material from a person or premises to ascertain whether the contents reveal grounds for arrest. We are uncertain why the extended powers are necessary post-arrest.
Anyone arrested under Section 43(1) of the Terrorism Act 2000 can have property seized. Similarly, if there was a need to search premises after a person had been arrested, we presume that there would be an application to a justice of the peace for a premises search under paragraph 1 of Schedule 5 to the Terrorism Act to obtain evidence. The current period of pre-charge detention permitted for terrorism offences is, of course, 28 days, which the Bill seeks to increase to 42 days. This would allow plenty of time to sift potential evidence. Therefore, we are unsure why this power needs to be applied post-arrest. I beg to move.
I appreciate that this amendment is probing; a number of other amendments will be in the same category. The amendment asks about subsection (1)(b), which states that under the Terrorism Act a power to remove documents for examination could be exercised on the suspicion of someone being a terrorist. Today we will be looking for a lot of reassurance as to how much activity can take place under this legislation when there is no proof of an offence having been committed, only the suspicion that one might be. In supporting the amendment, I draw attention to the fact that we will consider more amendments aimed at picking out the details of this matter.
The power to remove documents can be used only during a search that has been carried out under terrorism-related search powers listed in Clause 1(1). All these searches allow for documents to be seized during a search, but thresholds are applied for such seizure. The type of searches mentioned in Clause 1(1)(b) are those carried out under Section 43(2) of the Terrorism Act 2000, which allows for the search of a suspected terrorist on arrest. This search allows for seizure of the items on reasonable suspicion. It is important that the power to remove documents is attached to this power, because the threshold for seizure may not be met in relation to a document whose nature is entirely obscure—for example, when something is written in Arabic and none of the police can speak that language. The potential outcome of that could be that the police do not get to examine and seize a document that may be important evidence, which is why the power of removal should attach to a search under Section 43(2) of the Terrorism Act. That is why I ask for the amendment to be withdrawn. I hope that that answers the questions of the noble Baronesses.
It does to an extent and I am grateful to the noble Lord for responding in that way and to the noble Baroness, Lady Hanham, for her support. We might need to look at this further in the light of what the Minister has said. I shall withdraw the amendment for the moment, but we may bring it back if he has not satisfied our concerns. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2: Clause 1, page 2, line 8, after “constable” insert “of at least the rank of inspector”
The noble Baroness said: The power to search premises and seize property is draconian and severe and can be used only when there are more than reasonable grounds for suspicion. As the Minister said, it may not be very clear as to whether the documentation is relevant to what the police are looking for or whether it is completely irrelevant.
The definition of the word “constable” in any dictionary is the lowest rank in the police service. Would it not be more appropriate, as is made clearer later in the Bill, if the person who can make a decision to take those documents was not of the lowest rank but only someone with authority? We all know about warrants, entering premises and taking property out. In passing, I assume that in this situation a warrant would have to be sought, or perhaps that is not the case and under this legislation the police can just enter property without a warrant.
Whichever way we look at this issue, it concerns a major event. If someone is suspected of terrorism, the police can go into a property and a decision can be taken to remove documents or equipment. Our view is that that decision should not be taken at a level where someone might not quite understand what they are doing; the decision should at least be backed up by someone of a more senior rank. I beg to move.
I strongly support the amendment. In fact, over the many years that I have been dealing with police issues, I have always asked for the office to be of a higher rank than the Government have proposed. I have failed every time to get the Government to accept that, so when I saw this amendment I was very pleased to be able to support it.
Young and new PCs, who admittedly have gone through their training, could be in the position of going into premises and searching for these documents, but they may well not have the knowledge to ascertain whether the documents are prime articles for removal. It is important for someone with greater experience to go in and say, “Yes, this is a document that should go somewhere else”. Therefore, in this part of the Bill there is a big issue about training PCs. Again, I would say that inspector is certainly the lowest rank that should be expected to work on this aspect of removing papers. It is important that we support the amendment.
I am somewhat confused by this interesting amendment and have been trying to think about the practicalities and what it would be likely to lead to. It would mean that in a complicated operation perhaps involving a number of properties and a number of officers, every time a single piece of paper was found, someone would have to find the inspector, who might or might not be on site, to get it certified. This begins to look like overbureaucratisation of the police service, to which I thought the noble Baroness opposite was totally opposed. Here, we would be creating a bureaucratic procedure in the middle of an operation.
What is more, the proposal seems to be an unnecessary requirement because Clause 5 says that under these circumstances a document can be retained for only up to 48 hours and that beyond that a chief inspector has to give the authorisation. Why involve an inspector at first and then, if the operation goes beyond 48 hours, which seems to be the point at which people need reassurance that everything is being done properly, a chief inspector? I was completely bemused by that until I realised that the Opposition have tabled an amendment to delete the 48-hour requirement. Presumably they are saying that they want the bureaucratic bit right at the beginning but, once that is over, the bureaucracy is not needed. If that is the explanation, I understand it, but I still think that it is rather fatuous in the context of a complicated operation.
My noble friend Lord Harris has raised one of the issues that I was going to mention. I can understand the noble Baroness’s nervousness about this whole area, but there are two points of concern. The first is the practical one: an officer of at least the rank of inspector might not always be present at the scene or during the searches listed in Clause 1(1). I cannot say that an inspector will not be there but, even if he is, the operational implications in what, as my noble friend says, will very likely be a fast-moving situation will be to slow down the whole process, require two officers rather than one to make a decision and significantly remove the operational discretion of the constable or sergeant who is on the scene dealing with the individual. I always think in terms of mission command: these people are well trained and they should be given those sorts of responsibilities to deal with quick and moving situations. That is a day-to-day operational function of the police service. We are lucky that we have a well trained police service to do that.
Secondly, the safeguards in the Bill and the requirements set out in the draft PACE Code of Practice B regarding the exercise of this power provide that, if a document is removed, any decision to retain it for more than 48 hours, as has been said by my noble friend, must be authorised by a chief inspector. The actions of the officer would be subject to the recording and reporting requirements in the Bill and subject to scrutiny by supervisory management. Additionally, the actions of the officer would be, if appropriate, subject to the independent police complaints process and any relevant civil litigation or criminal action. I think that we have safeguarded this in those terms and I ask that the amendment be withdrawn.
The most exciting moment of my day has arrived: the noble Lord, Lord Harris, is bewildered. That enchants me. I am so pleased that I tabled this amendment and that he was able to say that. Normally, the last person in the world to be bewildered is the noble Lord, Lord Harris.
I am sure that the noble Lord will survive. I thank the Minister for his reply. I am still not convinced that someone who goes into premises looking for documentation, which may be very unusual, and who has to require a fairly detailed search would be able to remove that documentation without a senior inspector being there. Only in July did Her Majesty’s Inspectorate of Constabulary warn that even police sergeants often lack the necessary skills to do the leadership job effectively. Do officers dealing with terrorist offences have specialist training? Perhaps there is an extra arm to their initial training. In general, I think that someone of experience should do that job. I await the Minister’s reply on specialist training.
3: Clause 1, page 2, line 8, after “may,” insert “if he has reasonable grounds for believing that a document may be seized and”
The noble Baroness said: We feel a reasonableness test is appropriate here. There appears to be a blanket power for a constable to remove any documents which he cannot immediately identify. This touches on the previous amendment. We feel that a constable should have some idea that an item might be of interest. Reasonableness has always been included in such Bills in the past, so why not now? I beg to move.
In support of my noble friend, who made some very good points, I want to draw the Minister's attention to what his colleague Mr McNulty said in the other place. He did not say that it would remove the scope for the police to go on a fishing expedition. This is where I think that the noble Lord, Lord Harris, is perhaps—of course I hesitate to use the word “naive”, given all his experience. The Minister said:
“That will limit, in this very serious area, the scope for the police to go fishing”.—[Official Report, Commons, Counter-Terrorism Bill Committee, 29/4/08; col. 170.]
That does not disallow the possibility of fishing. Whether a search is a fishing expedition will rest on reasonably thinking that the evidence that the police remove from the premises of people who, we must remember, will in all likelihood prove innocent—I am sure the Minister can tell me the proportion of people searched and proved innocent and the proportion of those arrested and charged—is of such a nature. Although this may seem a small amendment, it relates to a serious issue.
The purpose of this amendment is to ensure that there are sufficient safeguards to stop police officers going on so-called fishing expeditions. We do not intend that they should go on fishing expeditions. I hope that noble Lords will take account of draft Code B of the PACE code, which accompanies these clauses and was relaid in the Library yesterday. The draft code makes explicit that the power should be used only when essential and that officers must not remove more material than is absolutely necessary. It makes clear that the removal of documents can have serious implications for their owners, particularly when they relate to business or other occupational activities, such as journalism. One can see how, on occasion, that might happen.
I hope that noble Lords will be reassured that we have set out requirements that, combined with the safeguards in the Bill, will hold the police to account, set out the rights of and protections for the individual and ensure that appropriate recording and reporting requirements are in place to protect the individual from arbitrary interference.
The difference from murder inquiries is that special powers are required for terrorism searches because of the severe consequences of terrorism. Specific powers are required to address this serious category of crime. It is a wider power, and there is no need for suspicion.
I hope that, given the safeguards I have talked about, the noble Baronesses and the noble Earl are reassured and that the noble Baroness will withdraw the amendment.
I am most grateful to all noble Lords who have taken part in this mini debate on an important issue. The Minister said that there is no intention to have fishing expeditions. That is the intention. Intentions may be good, but they may also work in other ways. These powers are to be used only when they are essential, but “essential” is another word I have difficulty with because who decides what is essential?
I would be most grateful if the Minister would reflect on the concerns being expressed by noble Lords on all sides of the Committee before Report, when we may come back to this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4: Clause 1, page 2, line 14, leave out paragraph (a)
The noble Baroness said: This is also a probing amendment. We seek to find out how far the police can go to extract material potentially related to a terrorism offence. The subsection refers to information in electronic form—which can, presumably, only be in computers or, at the most, a rather grand BlackBerry. With regard to something that the police expect to be on a computer, how much co-operation can they expect or require from someone whom they suspect of an offence to get that information? Will the person be required to hand over the password, or will the police just be able to seize the electronic equipment and go off to try to break the password? If the owner refuses to give the information required, what are the penalties likely to be? Is it an offence to refuse to give the police information that would help them to get information from a computer, either under the Bill or under any other Act?
That is quite important because you could have a very obdurate person—no one will be very happy about having people stamping over their premises—who becomes very obstructive. Are the powers somewhere else and not translated into the Bill, or are they not in the Bill so that we need to look at what could be required? I beg to move.
I support the noble Baroness’s amendment and can envisage all sorts of circumstances where it may be useful to include it. The requirement supposes that the person on the premises is able to produce the document in a visible and legible form. That person may not have the required password, and the equipment required to produce it in a visible and legible form—for example, a printer—may not be there or may not be working. This practical amendment is worth exploring.
The noble Baroness raised some interesting points. As was said, this is about information that could be stored in computers on a hard drive or in a digital camera or something like that. It allows one to say, “I would like to have this document downloaded”. The police are not allowed to take away the equipment—the camera or whatever—but they can ask for a specific document to be downloaded from it. They can take information that is still encrypted, but they cannot ask for the encryption key to break it. If the person refuses, for example, to download a bit of information or to assist the officer in accordance with the Bill, they are obstructing an officer and, as the Bill says, they face up to six months in prison.
Is this not self-incrimination? It goes against all our traditions to put someone in prison for six months for failing to produce something that he may feel will be detrimental to him and over which he has a guilty conscience. I recall a case in the ECHR where financial people refused to answer questions; the court found that human rights law had been breached. Are we not going down a very dangerous road when we start to link these sorts of things?
To answer the noble Baroness first, it is the person being searched, the person who is using the equipment and is suspected of terrorism, not the householder. There is also the question of whom documents should go back to; we will come to that when we discuss later amendments.
On the question of not releasing a bit of data, if suspected terrorists are holding close to themselves a map or some other document that is annotated in Arabic and will not give it up, that is obstructing the police. Under this Act, they can suffer the penalty of up to six months’ imprisonment. That is a perfectly valid and sensible way forward. We need to investigate these cases properly, and we now know that so much data are stored electronically and that terrorists are using more complex electronic means more and more. It is therefore absolutely appropriate that we should be able to demand this, because it is an important part of our ability to protect our nation. On the basis of what I have said, I ask whether the noble Baroness will be willing to withdraw her amendment. It is vital that officers can examine electronically stored material for the reasons that I have given.
I do not think that the provision mentions who may be required to provide information; it states that the constable may require information, but it does not seem to focus on who may be required to provide it. Someone who is not the subject of arrest might well have control of the computer. Is this intended to apply only to the person searched?
We have been able to dig at a little nugget here. The comments made by my noble and learned friend Lord Mackay and the noble Baroness, Lady Miller, about who is being searched and who has responsibility open the door more widely. The legislation is not clear; it just relates to a search. It may be a search of only one person or of no one, but there might be 15, 16 or 100 persons. Who, then, is responsible for providing information? It is almost certain that we will return to this matter to ensure that we are clear about the position on searches and who is required to give the information. For today, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5: Clause 1, page 2, line 19, leave out subsection (4)
The noble Baroness said: In the interests of clear legislation, I shall read subsection (4), on page 2, which states:
“Where a document is removed under this section a constable has the same powers of seizure as if it had not been removed and any matters discovered on examination after removal had been discovered before its removal”.
I am sure that we could spend a lot of interesting time trying to unravel that, but I am afraid that legislation should at least be clear. If it is not clear to the people who are making it, it will be very unclear to people subsequently. I had no idea how to amend it because I was not quite sure what it meant, so let me go on to discuss what this subsection is about.
Once the material has been discovered, what happens to it on examination? This subsection seems to be trying to say that any matter discovered should be treated as though it had been discovered in the initial search. Does this mean that if a computer file is decrypted and the police discover that it relates to a non-terrorist-related offence, they can act on that—they do not have the offence before them but suddenly out of the woodwork comes the fact that another offence is being created—or do they simply have to pretend that they never saw it: this material that they have coughed up in the process of a search for terrorism and which actually relates very much to someone who has conducted a crime of drugs elsewhere? What do they do with that information? Do they hold on to it and say, “There is a Chinese wall down here, so I can’t see it”, or are they entitled to put it into the hands of those who might be investigating the other complaint? If they can act on it, we have the possibility of terrorist legislation again being used inappropriately and not for the matters on which it has been enacted. If they cannot act on it in that way, we are asking officers, who otherwise may have a wide duty, to forget what they have just seen and do nothing more about it.
These provisions set up a precedent of allowing exceptional legislation for terrorism which in a few years the Government could argue should be extended to other offences. There are many offences involving evidence which is encrypted or in a foreign language—we all know about the child pornography pictures, trafficking and so on—but this legislation is about terrorism. Nowadays there is a nasty habit of people forgetting where legislation starts. It sort of creeps under the door like a flood and is used elsewhere.
The Minister may want to look at Clause 1(4). Although I have drawn his attention to it with some amusement, it is undoubtedly some of the most incomprehensible legislation I have read. Having, I hope, unravelled what it is about, perhaps the Minister would be kind enough to tell me more about these Chinese walls. I beg to move.
I have a great deal of sympathy with my noble friend’s opening remarks. It takes quite a bit of time to unravel quite what this provision seeks to achieve. Are we not in danger of creating some potentially rather oppressive legislation? Clause 1(2) states that a constable can take a document away,
“for the purpose of ascertaining”,
whether he can take it away. When he finds that he could have taken it away, his powers of seizure kick in and he does not have to return it. That is my understanding of the legislation. Why is it necessary to have subsection (4)? What is sought to be achieved? What safeguards would normally apply which are sought to be avoided in this legislation? We have to be very careful not only that the legislation is clear but that it does not, no doubt unwittingly, lead to possibilities of oppression.
I have considerable sympathy for what the noble Baroness, Lady Hanham, said at the beginning of her speech. At about 4.30 am I was reading these provisions in some detail and that was not a good time to hit this subsection. I have asked for a Speaking Note to explain subsection (4), so perhaps I can outline what it is trying to say. I absolutely take the noble Baroness’s point that it has not been put in the clearest terms. Perhaps we can take that point away and look at it. I think that we should be doing what subsection (4) proposes but I am not sure that it has been proposed as cleverly as it should have been.
The provision means that if the police find on examination that a document meets the test for seizure, then it can be seized. Let us say, for example, that the police take away a document in a foreign language as part of a search to which this power applies and find on examination that it is a bomb-making manual or whatever. They can seize the document regardless of under which specified search power the original search was conducted. Subsection (4) is needed because seizure powers arise on and during the search of premises or persons. The fact that a document has been removed to another place for examination will mean that the document is no longer on the premises or the person searched, so the seizure powers will no longer be extant.
Subsection (4) accordingly provides that those powers of seizure will still apply if the documents removed are subsequently found to meet the test for seizure. The amendment would remove that provision and in effect cause legislative uncertainty about whether a document can be seized following the exercise of a power to remove documents for examination. We might end up with a situation where a document was found following examination to be evidence of a terrorism offence but there was no power to seize it because the seizure powers apply only during the course of the search.
This explanation seeks to unpack what the subsection is trying to say. Legally, we could not seize the document because we were not actually on the premises. That is where the powers would lie without this provision.
As to whether the evidence could be used on another offence, if they found, for example, that a download from a computer had something to do with child pornography, that download could be seized although the search was conducted for a different purpose. That can be done under Section 19 of PACE. I do not believe, however, that this provision will result in the inappropriate use of power. The police have to exercise reasonable discretion within the terrorist context, as always.
I do not know whether I have responded to the point made by the noble and learned Lord, Lord Mayhew, but I hope that I have covered the issue. I would therefore be pleased if the amendment could be withdrawn.
I do not think that I would agree with the noble Earl; that is not what it says. We would not be seizing anything illegally. If we take a document away from a place where we have been making a search, where the powers of seizure normally apply, then, in law, when it is wherever we have taken it to, the powers no longer apply and we cannot seize it. This provision means that we will be able to seize it. That is what it is meant to mean. I agree with the noble Baroness that it is not the cleverest wording, which is why I wanted to unpack it. I believe that we need this power.
Instead of what is set out in subsection (4), would it not be easier to draft something along the lines of what the noble Lord has said, thus explaining the reason for including it; namely, that the powers to seize which are available during a search should be available in respect of a document which has been removed under the subsection in question?
I thank the Minister for that clarification. It would probably make this legislation rather better if the subsection were amended, so perhaps the Minister will be kind enough to do that of his own volition, otherwise we will have a go at doing it for him by the next stage. I am grateful for the explanation because it makes it clear that the powers are to retain documentation which is taken away from the premises during a search. I fully understand that the powers are required, but it would be better not to have a muddle later on when someone is trying to interpret the provision.
I also hear what the Minister says about material found that is not related to terrorism then being able to be passed to other branches of the services in connection with other offences. I should like to take that away and think about it, but it seems to me that to leak terrorism inquiries into other areas may not be entirely satisfactory. For today, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
Our debate over the past hour or so has opened up some of the tensions that will apply to the first part of Clause 1. I am grateful for the explanations that have been given, but the amendments have highlighted a worrying tendency for the Government to introduce exceptional powers to deal with terrorism and then for those powers to be applied, perhaps inappropriately, in far less justifiable circumstances.
There have been many examples recently of local councils using RIPA and terrorism legislation for purposes completely different from the ones that the legislation was ever set up for. We have to guard against legislation being used inappropriately at a date long after anyone who had anything to do with it is still dealing with it. We need to ensure that the Government implement safeguards to prevent this legislation from going the same way.
The police in Northern Ireland enjoyed exceptional powers because of the long-term troubles. As the situation there has become normalised, the Government have decided that these provisions should be saved and the process extended to England and Wales. The police in England and Wales have not asked for these powers; the Northern Ireland police did not want to lose them. Using this as an example, the Government’s impulse always seems to be to level up and to choose the most draconian solution.
Given that the Government’s tendency is to gold-plate, what is different about these provisions and the ones that apply in Northern Ireland? Have the Government directly translated the rank of officer and the length of time allowed—to go back to the earlier amendments—or have they quietly expanded the provisions because they think that they might be useful? Many of the powers in the Bill, as we understand it, are taken from the Northern Ireland legislation. Is that now appropriate within the terms of Clause 1?
I am grateful to the noble Baroness for allowing us to reflect on the whole of Clause 1. I again raise the question that I asked the Minister during the debate on one of the amendments about the proportion of people who have been searched but who are innocent, as opposed to the number of people who are prosecuted under the terrorism legislation. Obviously a high proportion of innocent people will end up being searched. Unless those searches are seen to be fair and conducted in an irreproachable manner, the likelihood is that that will cause tremendous upset in communities. That is of deep concern to us.
The Minister referred to the fact that officers might be looking for terrorist material and instead find child pornography. That is an emotive subject and the Committee would probably agree that, with that degree of seriousness, the police might be justified in taking action. However, it is much more likely that they would find that teenagers in the house had been downloading music material to listen to or films to watch. That is illegal because it contravenes copyright law, but for the police to take action on it after searching under terrorism laws would be a difficult step to take. As I say, it would be counterproductive. I am sure that the Minister is aware of the implications that that kind of behaviour could have for community relations.
Clause 1 has rightly been closely scrutinised and there is sufficient material to come back with on Report. I am grateful to the Minister for saying that he will take away and look at certain matters, because there is room for improvement.
I have sympathy with a great deal of what both noble Baronesses have said. We have to be careful that we do not move towards a Big Brother-type society. I know that the Committee is conscious of that; I certainly am when I am sitting at my desk in the Home Office looking at these issues. To digress slightly, I would like to look at the totality of all legislation and the possibility of squaring some of it away, but that is beyond what we are talking about today.
We have a large number of safeguards in the Bill. It is proportional to what we want to achieve, and what we are trying to achieve is valuable for national security. The noble Baroness, Lady Miller, asked me about the numbers that have been stopped and searched, but I am afraid that I do not know that off the top of my head. I shall get back to her in writing.
I suppose that it was very naughty of me to use the example of child pornography. It is desperately emotive and you think immediately, “Wow, that will get everyone going”. The noble Baroness spotted that one. It would be wrong if the police ignored serious things like that, but there is a certain proportionality with the police. They use their judgment and generally they are very good at it. She gave the example of downloading music; I would hope, although I would not want to put it in legislation, that they would use their common sense in that case. She is right that, in terms of our Prevent Strategy, these things have an impact on, for example, Muslim society. We have to be careful and we have to be certain that we are not doing things that are wrong, biased and unfair.
With regard to translating across from the Northern Ireland legislation, I understand that the police in this country expressed their support for that during the consultation. I do not think that they were banging the drum and demanding it, but they expressed their support for it. As the noble Baroness, Lady Hanham, says, the Northern Irish police were keen that this should still be there, for the good reasons that we know within the Province. It is therefore right that we do it in this way.
As I have said, in recognition of these wide-ranging powers we have added a substantial number of safeguards, found in the clauses that include protection for items subject to legal privilege; a requirement to make a record for the removal; strict time limits for the retention of documents; access to the documents and the right to request a copy of them by the specified persons; and prohibition of the police photocopying the documents unless it is to supply a copy after a legitimate request.
We have also proposed, as I mentioned before, amendments to the PACE Code of Practice B, a revised version of which was put in the Library yesterday. In those amendments we set out how the police should discharge the power. They include a paragraph specifically stating that officers must be careful that they exercise these powers only when it is essential and that they do not remove any more material than is necessary. In addition, the draft code makes it clear that officers should be sensitive in the removal of documents, particularly those that affect individuals’ businesses or professional life, journalistic material and that sort of thing.
This power is important. It will allow the police to gather as much information as possible during terrorism-related investigations. That is for the good of the nation. It will make us safer, with all those caveats for looking after and safeguarding people. I therefore think that Clause 1 should stand part of the Bill.
I thank the Minister for that reply. I make it clear that we are not trying to undermine this legislation; we want to ensure that it is used appropriately and that people are not caught up in these investigations who should not be. That is not to say that we do not have sympathy with some of this; we appreciate the problems. I am grateful for his explanation.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 [Items subject to legal privilege]:
6: Clause 3, page 2, line 44, at end insert—
“( ) Under subsection (2) it is not reasonably practicable for the item subject to legal privilege to be separated from the rest of the document if, and only if, it is not reasonably practicable because of—
(a) the time required to determine whether an item should be seized or to separate such an item,(b) the number of persons required to carry out that determination or separation, or(c) the apparatus or equipment that would be necessary or appropriate to use for carrying out that determination or separation.”
The noble Baroness said: The safeguard of legally privileged documents is fundamental to our legal system. The amendment is about the difference between the proposals and the operation of the Criminal Justice and Police Act 2001 in relation to the safeguards that apply to the seizure of legally privileged documents such as the time required to determine whether an item should be seized, the number of persons who are required to carry out the determination or separation, and the apparatus or equipment that is necessary or appropriate to carry it out. Can the Minister explain why those caveats are included in the 2001 Act but not in this Bill? I beg to move.
I support the amendment. Clearly the catching up of legally privileged documents within such a search could prejudice what the police are trying to do. There must be some way of separating out legally privileged documents or material so that that does not happen. The noble Baroness is right that there needs to be some clarity. It comes back to my Chinese walls and the question of how much you are allowed to remember and how much to forget of documentation that you are not entitled to have seen.
The noble Baronesses have both raised an important point. We understand the need to strike an appropriate balance between the protection of legally privileged documents and the ability of the police to conduct effective searches as part of their terrorism investigation or, indeed, as part of their investigation of any offence. I think that the clause maintains that balance.
I appreciate that, as the noble Baroness mentioned, the amendment seeks to achieve safeguards similar to those already contained in Part 2 of the Criminal Justice and Police Act 2001 in relation to determinations and separations under Sections 50 and 51 of that Act. However, it is important to note that the factors in this amendment, lifted from Part 2 of the 2001 Act, do not apply to the provisions in that part on legally privileged information. The provision in Clause 3 is largely modelled on that in Section 54 of the 2001 Act.
While these factors or criteria may be used when considering whether legally privileged material that has been removed can be separated, we should not seek to prescribe the circumstances for separation in relation to terrorism-related investigations, as we would not do in relation to the seizure of legally privileged information under the more general powers in Section 54 of the 2001 Act. Instead, we should allow that to remain at the discretion of the officer in charge of the investigation. Therefore, I do not wish to have criteria specified on the face of the Bill that would adversely impact on the effectiveness of that terrorism investigation. For those reasons, I ask the noble Baroness to withdraw the amendment.
Does that mean that if, in a search, an officer—we are talking about a constable, not an inspector—comes across information or correspondence between the person whom he is searching and their legal adviser, he is still entitled to pick up that material and take it away while he thinks about it? That would seem to breach all the protocols for legal material and access to a solicitor.
The way that the noble Baroness has described the situation is not correct. If a document clearly showed a dialogue between the person and his lawyer, the officer could not take it away. If he takes something away that is written in Arabic and then finds out when it is translated that that is also the case, it cannot be looked at. However, if a document contains a letter between the lawyer and his client and underneath it are some annotated maps, for example, the police can separate those out. They can take that document but are not allowed to use any of the legally privileged data when those are being examined at the police station. They have to be separated out and the other material can be looked at. That is to prevent people from sticking a covering letter between them and their lawyer on the top of a document so that it cannot be taken away. The legally privileged documents are not allowed to be used in any way whatever—indeed, they are not allowed to be taken, if it is clear that that is what they are.
I am grateful for the support of the noble Baroness, Lady Hanham, on this amendment. The Minister has probably satisfied the breadth of our concern, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill.
It is a long-established principle of search and seizure that police may only seize documents covered by the terms of the search warrant or relevant statutory power. For police to take documents outside of the terms of the warrant or statutory power is not only unlawful but also very likely a serious violation of the owner’s right to privacy, especially if the documents are legally privileged. Despite these very well established principles, Clauses 1 to 9 introduce a series of sweeping provisions to enable the police to seize documents as part of a search, even though they do not know whether the documents are lawfully part of the subject of the search.
The power to remove legally privileged documents is an especially disproportionate interference with the right to respect for privacy under Article 8.1 of the European Convention on Human Rights and the common law right of access to legal advice, including the right to communicate in confidence under the protection of legal professional privilege. Given that there is no power to take away legally privileged material by way of an ordinary search warrant, other than under the exceptional terms of Part 2 of the 2001 Act, and given the greater safeguards of Part 2, we on these Benches think there can be no justification for allowing such a broad, unfettered power.
I touched on this in my previous answer. I must make it clear that legal privileges are rightly there to protect lawyer/client confidentiality. That is why this clause provides that a document may not be removed or retained if it is subject to legal privilege. If a document is clearly subject to legal privilege, it cannot be taken away or retained. The only exception is when it is not reasonably practical for the legally privileged item to be separated from the rest of the document. That can happen when there is a mixture of stuff, some legally privileged, and some stapled on. It could be something which includes correspondence with a lawyer but contains lots of other information. This is very infrequent but we do not believe it should stop the police from examining the remainder of that document, which is not subject to legal privilege. Where that is the case, the whole document may be retained but the legally privileged information must not be examined except to see that it is legal. If it is, it cannot be looked at, unlike the rest of the document.
This is a standard provision. There is a similar provision making an exception for the return of privileged items where they are contained in other property in relation to all statutory powers of seizure exercised by a constable. That is set out in Section 54 of the Criminal Justice and Police Act 2001, on which Clause 3 is based.
This is not an erosion of protections afforded to legally privileged material; rather, it is a sensible provision in response to a practical difficulty that we know can occur. Clause 3(5) provides that where a removed document containing legally privileged material is retained because it is not reasonably practical to separate the parts, the legally privileged sections cannot be examined except where it is necessary to facilitate the examination of the rest of the document to see what is not legally privileged.
This does not change the protection of legally privileged material and it is not in the interest of the police to examine such material beyond what is allowed by the provision. Any information taken or derived from a legally privileged document is likely to be ruled inadmissible by the trial court and could allow the defence to raise abuse-of-process arguments about the safety of the whole trial. The police are fully aware of this. Inappropriate examination of legally privileged documents by the police does not happen at present in relation to seized documents, and I see no reason to suppose that it will happen in relation to the exercise of the power.
It is clear that we must strike the right balance—I understand why the noble Baroness has raised the point—between the importance of thorough searches in terrorism cases and the proper protection of legally privileged documents. The clause strikes that balance and is not an erosion of protection.
I am grateful to the Minister for responding in the way that he has. It is a little bit like living in a parallel universe: you can look at part of a document and might find something in it that is not to be looked at—and, gosh, you had better hide it behind your back and make sure that you do not look at it because it is privileged. You take it away, but you have to be very careful. Being able to look at some and not all of a document, and saying that part of it is privileged, is difficult to try to understand. We oppose the Question that Clause 3 stand part of the Bill simply because of that difficulty. However, the Minister has gone some way to reassure me. I still think that it is a very difficult area and we may come back to it.
Clause 3 agreed to.
Clause 4 [Record of removal]:
7: Clause 4, page 3, line 43, at end insert “, and
( ) state the reason the document is believed to be material to the investigation.”
The noble Baroness said: In moving the amendment, I probably risk the noble Lord, Lord Harris, accusing me of being bureaucratic. The intention behind it is further to explore how checks as to what it is reasonable to remove will take place. The amendment suggests that the constable should state the reason a document is believed to be material to an investigation. Some documents will be self-evidently material, whereas it will be hard to see why others could be. It is for that reason that I have tabled the amendment. I refer the Minister to our discussion some moments ago about confidence among members of the community that only what is absolutely necessary for the prevention of terrorism is being done and their being assured that the powers that we are going to give to the police are exercised in the most scrupulous way. This is a probing amendment; it is not intended to produce more bureaucracy for police undertaking an investigation. However, I would like to hear from the Minister just how those fine judgments will be reviewed and kept under scrutiny, particularly in the cases of those people who prove to be innocent but who may have made minor transgressions. I beg to move.
I support the amendment, at least in a probing capacity. It bears upon concern that we have already ventilated today that legislation should not be oppressive in its application. Fishing expeditions into other people’s documents have always been regarded by the law as potentially oppressive. To be legitimate, there must at least be reasonable grounds for believing that they are necessary in the interests of justice. Those grounds should be disclosable.
There is a good example of the formulation that the amendment argues for, which adds to the requirements of the record of removal, in Clause 24(2), which deals with a report of an operational need for further extension of a maximum period of detention. The report has to be made by the Director of Public Prosecutions or others and must state that,
“each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the purposes mentioned in subsection (3) below, and … give details of the grounds for that belief”.
I support the formulation in that context. The same reasoning justifies the insertion of the text which is the subject of the present amendment. I hope that that may commend itself to the Minister.
I am grateful to the noble Baroness, Lady Miller, for suggesting a line of argument on this. I was not on this occasion going to oppose her amendment on the basis that it was over-bureaucratic, but, to use the words that she used earlier, because it was perhaps naive.
I am not quite sure how, in the course of an investigation, it will be appropriate for police officers to say exactly how a particular document might fit into a line of inquiry which may have been generated by intelligence, or something which has happened which would not otherwise be known to the person who is being investigated but might materially alter the way in which they behaved were they to know that. The amendment seems to hand somebody who may turn out to be a potential terrorist substantial information about the cause, background and how much information that the police already have.
The danger of the amendment is that the reason given would be of such extraordinary generality and banality that it would be meaningless. It is clear that to state the reason as being that the constable concerned thought that it might fit in with the general line of the investigation which was taking place would not serve the purpose. If the noble Baroness is concerned that there should be the possibility of an audit after the event as to whether the powers have been exercised reasonably—I can see that that is legitimate, because there have been instances described of what sound like bizarre things having been seized—she is looking for something that is not part of a record which can be given to the person from whom the documents have been taken, but something which is required to be recorded so that, in any subsequent inquiry, it could be looked at. The danger of that is that one is creating another form of bureaucracy, whereas what is intended is something which is handed over at the time.
We must be realistic about the circumstances; we must be realistic about the widespread concerns about the extent to which the police have to fill in forms. The clause contains a requirement that people receive a proper receipt for documents that have been taken from them, with a fair degree of detail about the circumstances in which it has happened. However, to suggest that, at that stage, in that document, the police should explain how their investigations are going and what they are looking at is taking it a step too far. If there is genuine concern that the police are not using the powers reasonably—I would have thought that other amendments and discussions might have covered that—what the amendment proposes will not resolve that problem because it will lead to reasons being put down which are so general as to not mean anything. If one is really concerned to do that, some other form of record is needed, but it would create a new bureaucratic process. I wonder whether that is quite what the noble Baroness intends.
As I understand Clause 4, it deals only with the removal of a document under Clause 1(2) and not with seizure. The only object for removing a document is so that it may be examined in another place; in other words, for some reason it is not suitable to examine it there and then and you have to take it somewhere else to have it examined. Therefore, when it says in Clause 4(3)(b),
“specify the object of the removal”,
the only relevant object of the removal is for the document to be taken to another place for examination. At the moment I do not see any further scope for more than that. It does not have to say that the document will be useful on examination, because, apart from anything else, in some circumstances it would be impossible to tell that until you have examined the document. Therefore, if the policeman making the search thinks that the document requires to be examined further in a way that he cannot do there and then, it must be taken somewhere else. It is only after that that the question of seizure arises. Of course at that stage the question of whether the document will be useful in the progress of the investigation becomes relevant, but the results of the examination will be known by that time.
The Government understand their obligation to preserve the balance between the rights of citizens and the investigative tools available to the police. In that context I acknowledge the concerns of the noble Baroness and the noble and learned Lord. I restate that the police will not use this power to seize any documents they want. That is not what we aim to do, and I hope that the way the provision is phrased will stop that happening, with all the safeguards—I have covered these before and will not go through them again—that we have put in place against misuse of power and PACE code B.
We do not expect officers to seize all materials simply, for example, because they are in a foreign language. We expect them to use their common sense over that. I give a silly example: if it is Hello magazine written in Arabic, I would hope he would use his common sense and not take it. They need to use their common sense when doing this. However, as the noble and learned Lord says, the officer is already required to state the object of the removal. It is removed so they can check it through and then make a decision about seizure. I think that he might put on his form that he has taken it as it was written in Arabic or something that he cannot translate. That might be added to the form.
I had not thought very deeply about an audit after the event. My noble friend Lord Harris gave reasons why we have to be careful of going down that sort of route. I might want to have a think about that—not for such a provision to go in the Bill, but it might be useful and I want to think about whether it might be done practically. I am conscious that we are treading into areas where we have to be careful in that balance between the rights of citizens and the tools available, so I should like to think about it.
As I say, we do not expect officers to seize masses and masses of material unless they are absolutely sure. I feel that we have dealt appropriately with these problems in the Bill. To accept the amendment would be to negate the purpose of the power. I take the potential misuse of this power very seriously. That is why we put in all the safeguards. As I say, I should like to think about the other issue, but I do not think that it would be appropriate to put such a provision in the Bill. I hope that I have been able to satisfy the noble Baroness and that she feels able to withdraw the amendment.
I am very grateful to all noble Lords who have spoken in what I think has been a very useful short debate on the issue. As I said at the outset, this was intended to be a probing amendment. I am especially grateful to the noble and learned Lord, Lord Mayhew of Twysden, with all his experience, for stating better than I could why it is important that we have the debate. If the suggestion of the noble Lord, Lord Harris, about an audit could be useful—I am not saying that such provision should be made in the Bill—I am grateful that the Minister is going to think about it.
The Minister said that he did not imagine that the police would seize “masses and masses” of material. However, where they have a suspect with masses and masses of material, I imagine that they would seize nearly all of it, so I am not sure that he is right about that. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Retention of documents]:
8: Clause 5, page 4, line 25, leave out subsection (1)
The noble Baroness said: Under Clause 5, retention of documents is limited to 48 hours without further authorisation. Again this is a probing amendment. I should like to refer to the Northern Ireland Act, when it was in use, and ask the noble Lord how long documents such as this were held in Northern Ireland. Was it for longer than 48 hours or was it within that 48-hour limit? I suspect that it might have been less. Would the Government expect it to take longer in England and Wales to clarify whether documents are needed? I am talking about getting them back to wherever they are going—to the police station or whatever—and for somebody making up their mind about whether the documents have relevance.
Under Clause 5 it is possible for the period of extension to increase to 96 hours, starting from when the documents were originally removed. Can we be sure whether these documents can be held after they have been translated or decrypted? Therefore, if there is an extension of time to 96 hours and the documents require decryption, when does the time begin to run? For how long can they be retained? It looks as through that extension will be from the moment they are seized, but if more time is required—I can understand that the translation of documents may take time and then a decision needs to be made—is there any question that they may go beyond the 96 hours, and beyond 96 hours from when they were originally seized?
This is quite important. Clause 6 deals with access to those documents by the people they have been seized from, so we need to know where the timescales begin. I beg to move.
The amendment as tabled could remove an important safeguard that limits to 48 hours the normal process of assessing whether a document is material and should be seized. The other issues raised by the noble Baroness, Lady Hanham, are important and need to be clarified. However, the amendment as tabled to remove the 48-hour requirement seems to me to be unhelpful and would remove a very important safeguard for people faced with this situation where material was being taken from their homes to be assessed.
I thank the noble Baroness for these points. A couple of them are rather important. As regards the Northern Ireland situation, the period of 48 hours was used in Northern Ireland. The provisions were used around 347 times over a period of five years and the police found that 48 hours was adequate time generally to examine a document. Therefore, we did not see any reason why we should change that.
The Bill makes provision for extending the periods of retention, only with the authorisation of a chief inspector, up to a maximum of 96 hours. Perhaps we have not made it clear enough in the Bill. As I understand it, if you find something in a document in 96 hours—the period up until which it is removed—that is important for the case, you then seize it.
On encryption, we are not allowed to decrypt something on the basis of this clause. We would have to apply for a separate notice under Section 49 of RIPA. If it was encrypted, we would either have to say that we need not bother because of all the other stuff or, if we felt we needed to, we would have to apply for that notice. I am not sure that that is quite clear enough in the Bill; I will look at it and see that it is clarified. However, the amendment would confuse things and wreck this aspect of the Bill. I therefore ask the noble Baroness to withdraw her amendment.
I realise that the amendment was not entirely helpful to the Bill. On the other hand, there must be devices for getting matters discussed, and so we have had a short debate on this issue. It is important in dealing with decrypting and what can and cannot be done with document retention thereafter. I am grateful to the Minister for his reply. There is nothing more to be said about this, and I do not think that I will return to it. If I do, it will be with an amendment that is less worrying to the noble Lord, Lord Harris—although why I should bother, I am not sure. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Access to documents]:
9: Clause 6, page 5, line 5, leave out subsection (3)
The noble Baroness said: I have four amendments in this group—Amendments Nos. 9 to 12—and I will go through them individually. As I said on Amendment No. 8, this leads us into “Access to documents”, and my amendments probe the duty of the officer to return the documents and any copies made.
Amendment No. 9 highlights the provisions that place a duty on the police to distribute copies of the document to certain people while it is seized. Oddly, the provisions under Clause 6 that ensure access are not the same as those under Clause 8 which ensure that the document is returned to the correct person. As far as I can see, the provisions would allow the owner of the document no access if he was not in custody of it when it was seized. Is that the case? It is the kernel of this problem.
There is also no discretion under Clause 6 to deny access to somebody who had custody of the document at the time of the seizure, but who should not have had it. That could occur anywhere in a workplace, for example. Clause 8 considers the possibility that someone had inappropriate custody of the document at the time of its seizure, but Clause 6 does not. This is a case of ensuring that the clauses and provisions stack up together.
Amendment No. 10 highlights the unusual judgments that these provisions will demand from police officers. As we have discussed, a police officer is in possession of an unreadable document, because it was found during a search based on a terrorism offence. He is now meant to decide whether access to this document, which is still unreadable, will prejudice a future investigation of criminal proceedings or even facilitate the commission of an offence. How can an officer tell whether allowing someone access to a computer, or giving them a copy of document, will do any of those things? He must decide who to give it to, or who not to.
The point about these documents is that the officer still does not know what they contain. He is being asked about access, does not have the faintest idea what they say, and must decide whether the person asking about it has a right of access to it or not. As he does not know, he cannot tell.
Amendment No. 11 is a probing amendment, designed to explore what would happen if the document had been damaged or lost; this is probably more relevant if a computer had been taken apart and the document had been damaged in the process. Are the police responsible or liable for the loss or destruction of that document?
Amendment No. 12 looks at the grounds on which a document’s return could be delayed. In the Commons, the Government promised to look at the Police (Property) Act 1997 to see whether there was a mechanism for deciding the property’s owner. Can the Minister give us any information about that, and whether those inquiries took place? That is the burden of those amendments. I beg to move.
As the noble Baroness has spotted, this is a quite complicated matter. This might be a long answer, but I need to go into some detail on it. I had the same queries myself, and so had an explanation from the Bill team.
As the noble Baroness rightly points out, Clause 6 makes provision for certain persons to have access to a document removed for examination under Clause 1 of the Bill. While removal of documents for up to a period of 96 hours may have little or no adverse effect on some people, for others the documents may relate to important matters and they will need them back. That is why this clause provides for the right of supervised access and copies.
However, it is important that such rights are not granted where the officer in charge of the investigation has reasonable grounds for believing that they would prejudice criminal investigations or proceedings, or they were sought for a nefarious purpose—for example, to interfere with prompt and effective investigation into a terrorism-related offence or to facilitate further offending.
The first amendment in this group would remove the provision which sets out the people who are entitled to request a copy of the removed document. Clause 6(3)(a) provides that where the document was found during the search of an individual—for example, stop and search under Section 43 of the Terrorism Act 2006—then that individual alone can request access to, or a copy of, the document.
Where the document was found during the search of premises, then the occupier of the premises can request access, along with the person who had custody or control of the document at the time it was found, or someone acting on behalf of those persons. These terms cover distinct groups of people. For example, if the police search the premises of a business and remove some documents from an individual worker's desk, the business would be able to request access to the document as the occupier of the building. Equally, the individual would be able to request access as the person who has custody or control of the document when it was found, as the document may have belonged to him personally. Finally, it is also possible for a person acting on behalf of any of the people above to request access, provided they can prove that they are a genuine representative.
The second amendment would remove the reasons for which an officer can refuse access to, or a copy of, a removed document. I consider that each of the reasons in Clause 6(4) for limiting access is required. Subsection (4)(a)(i) is to cover the original investigation—a search conducted under new Section 7A of the Prevention of Terrorism Act 2005 to see whether a person subject to a control order has absconded, for example. Subsection (4)(a)(ii) will cover the investigation of the document, so access may be refused, for example, where this would prejudice the actual process of examination, such as by slowing down the examination so as to take it outside the timescales for retention.
Subsection (4)(b) covers the investigation of an offence—for example, if it was thought access would tip off a person as to the documentation seized such that other evidence of the offence could be covered up. Subsection (4)(c) covers the prejudice of criminal proceedings, the justification of which speaks for itself, and subsection (4)(d) covers the facilitation of an offence—for example, access to a document which might consist of information about potential terrorist targets. Similar restrictions on access to, and copies of, documents seized are provided in Section 21(8) of PACE. These concern the prejudice of any investigations or criminal proceedings.
I know that is a very convoluted response but I hope that the noble Baroness follows the reasoning. The consequence of accepting the relevant amendments would be to deny an individual who has had his documents removed by the police under this power a means of reducing the impact of these provisions on his life. Therefore, I hope that, on that basis, she will feel happy to withdraw the amendment.
On Amendment No. 11, the noble Baroness asked whether the police would be liable for damage to property. I assume that they are, but I do not know. I shall check that. I am sure that they would be. They will not take away computers, cameras or the like; they will take away downloads of material only. That is all that they can ask for. Therefore, any damage would concern documents. I think that it is unlikely that they would be damaged, but I am sure that the police would be liable for any such damage. However, as I say, I shall need to check that, because I am not absolutely certain about it.
Amendment No. 12 concerns the return of removed documents where there are competing claims. A situation may arise where, for example, the person on whom the document was found may have been looking after it for someone else. Where the officer returning the document is satisfied that another person has a better claim to the document, it may be returned to them.
Where there are competing claims for the document, it may be retained for as long as is reasonably necessary to determine to whom it should be returned. This amendment would insert a time limit of 24 hours for making the decision on how long to retain the document. We have made it clear in the clause that a document can be retained only,
“for as long as is reasonably necessary”,
to make that decision. I think that, in all likelihood, the period will be much less than 24 hours. However, in a very complex case it may take longer than this to decide to whom the document should be returned. The provision in the Bill allowing retention for this purpose for as long as is reasonably necessary again follows the model in Part 2 of the 2001 Act.
I know that is very complicated, but this is a complicated provision. However, that is what is behind it all. Noble Lords should be aware that, while a document is being retained awaiting a decision on competing claims, it cannot be examined, so that does not make any difference to the relevant period. I hope that I have answered all the questions and that the noble Baroness feels able to withdraw the amendment.
I hope that the Minister will clarify a point that he made with regard to Amendment No. 9. He mentioned somebody being under a control order as if that were the only factor. I may have misunderstood or misheard what he said and, if that is the case, I apologise.
I shall have to read the Minister’s speech in Hansard. I am grateful to him for trying to untangle these clauses and the question of access. I shall study his comments on Amendments Nos. 9 and 10 because the areas that they cover seem rather muddled and I want to be sure that I have correctly understood what he said. I am grateful for his response on Amendments Nos. 11 and 12. I may return to Amendments Nos. 9 and 10 at a later stage, but, for today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Return of documents]:
[Amendments Nos. 11 and 12 not moved.]
Clause 8 agreed to.
Clause 9 agreed to.
Welfare: Churches and Faith Communities
asked Her Majesty’s Government what future role they envisage for churches and faith communities in voluntary sector and welfare delivery partnerships.
The right reverend Prelate said: My Lords, I hope that the House will forgive me for having broadened the scope of this debate by removing the reference to the Von Hügel report, Moral, But No Compass, from the original Question that I tabled. On reflection, I consider that report to be an important and provocative contribution to a rather wider subject and debate.
There has been a growing political and principled interest, both in the United States of America and in the United Kingdom, in the role that the churches might play in social provision. Let us be clear at the outset that this is not simply a pragmatic issue about how, in times of scarce resources, we cajole agencies such as the churches into filling the increasing number of gaps in the welfare state. Churches and voluntary agencies are not a backstop for the public sector. I want to make that important point right at the beginning. The strength of the churches and, indeed, of other voluntary agencies is in their being local and offering a faith that motivates people to action. They have historically been the stimulators of prophetic and innovative action in the field of neighbourly care. So this hour-long lunchtime discussion, for which I am grateful, must focus not on filling gaps in state provision but on the positive role that these communities can play in meeting the needs of our society.
For me, this is a principled and philosophic issue. At its heart is the question: what is the place of the church in a modern democracy? In a short but superb book on the history of the church and welfare provision, Christianity and Social Service in Modern Britain—The Disinherited Spirit, Frank Prochaska begins his study with some words of de Tocqueville:
“Christianity must be maintained at any cost in the bosom of modern democracies”.
That is based on the principle that democracy flourishes on the associational life of the community. It raises not only the question of the role of civil society, as we now call it, bridging the gap between the individual and the state, but the role of faith communities, and of the churches in particular, in sustaining that culture.
The 20th century, with the development of the welfare state, saw the growing marginalisation and privatisation of religion and the increasing dependency of people on the state for social provision. You and I live in a double bind as a result of that experience. On the one hand, religion is viewed as a private and personal matter rather than something primarily of public concern. Religion is a hobby, a leisure-time pursuit outside the framework of public life. That is an outmoded secular view still all too present in public debate. On the other hand, increasing expectations of the state have contributed to a growing and dangerous disillusionment with our public institutions.
Where the Von Hügel report stirs us to think again is in the fact of the presence of the church right across our society; that is, in all the four nations that make up the United Kingdom. There are church communities and church buildings all over these nations. In the 21st century, there is a growing debate in the churches about what this means for our public life. Faith is not a private choice but a public reality.
I can speak only of my own experiences in both the diocese of Guildford and now in the most diverse of all Church of England dioceses—Chelmsford. For example, on licensing a new priest to a parish a few months ago in a relatively poor urban area in Essex, I was told, “You must meet Jean”. Jean had started a scheme to link homeless young people to families. A little cash was needed. We found some money and today the scheme is a growingly established contribution to meeting the needs of homeless people, particularly young people.
When I was in Guildford in Surrey, the appropriate adult scheme for the police in the courts was run by the diocese. The scheme had been established by a priest in the diocese of Southwark who, because Surrey was predominantly in the diocese of Guildford, moved the organisation into our diocese. Much to many people’s surprise, particularly people in public life, it was run to the highest standards of professional care. It drew in people of all faiths and of none and, above all, it was economically efficient.
A few weeks ago, I visited the YMCA in Chelmsford, where a huge service is offered to children, families and young people. Two years ago, with the chief fire officer in Essex we established a new project employing a “fire evangelist”, chosen by the church, helping the fire service to get the message of fire safety across in the communities. Why did the fire service want to be in partnership? Because the churches are present in local communities and have access to those networks. Tens of thousands of churches of all traditions are present and active in their communities and they are crucial to the social well-being of our country. We need to know how the secular authorities view that these days.
We all face real challenges, some of which are common to all civil society work. Churches may enter into partnership with public authorities and win funding, but what about the long-term viability? Dependency on state funding can first raise things up and then promptly let them down. As they rise up and sink down, how do they maintain their distinctive identity, in this case as Christian contributions to public life? How does the state respect and uphold the freedom and distinctiveness of civil society and especially of Christian contributions? If we face the difficult task of getting churches to see themselves as holding a faith that is essentially in the public forum and part of public life in a democratic culture, how do we get the state to stop wanting to control things through the public purse? Time and again, partnership falls apart around those questions.
If lively and open faith is crucial to the flourishing of democracy—I have some sympathy with de Tocqueville’s view—in which we resist theocracy on the one hand and the dominating power of the state on the other, we have to share in this growing public debate about the place and role of the church. Since neighbourly care is at the heart of the outworking of a lively faith, how can we make space for its flourishing not just in private and personal relationships but in public life? That is why the theme of welfare is close to the heart of the matter and why, in a brief moment in this House this lunchtime, I thought it right to open such a debate. I look forward to the contributions of all noble Lords.
My Lords, I am more than grateful for the opportunity given to us by the right reverend Prelate to discuss, albeit briefly, this very important matter and to give a little more publicity to the important Von Hügel report, which raises questions that need more ample discussion than I suspect we have time for now.
As a Methodist minister, whose only virtue has been that he has served for 40 years at parish level with ordinary people living on ordinary streets with ordinary needs, I have viewed with some alarm since coming into your Lordships’ House the prevailing attitude of so many Members of this House who take a secularist, dismissive and presumptuous view of the Christian religion. While it may be true that loving God can be dismissed to the level of private belief or, as the right reverend Prelate said, a hobby, the conjoining injunction of our Lord that we are to have a dispassionate love of our neighbour is by definition impossible to carry out in private. It has to be done in the streets.
The multiform ways in which the disinterested love of the neighbour is practised in our society through the Christian churches, with no proselytising aims whatever, is astonishing. Any public body in this land that would want to suppress any of that or, by increasing bureaucracy and red tape, make it virtually impossible to practise it would be shooting itself in the foot. It is disinterested service, offered voluntarily, by thousands and thousands of people in the name of the public and common good.
As it happens, I have had responsibility for significant projects through the course of my ministry. Some have been paid for by government. There was a bail hostel in north London, for example, which was run along exemplary lines by a man who had been a Roman Catholic priest but who was now a probation officer and, in conjunction with a professor of criminology at the University of Cambridge, offered real, serious added value to the care of people who otherwise would be in prison on remand. There was also a day centre for homeless people. These were not just run of the mill homeless people, but those over 25—the old lags. There was a range of services built in, so that the needs, from delousing to psychiatric support and plugging the clients into statutory services, were all met.
As a result of that long experience, I have come to realise that, while some money must be gained contractually through partnerships between those of us in pastoral ministry and service providers, I have a penchant for paying for it ourselves. It is much more difficult for Methodists than for Anglicans to get near the source of public funding. We want to find real, serious pieces of work that we can do well, going to who John Wesley said were not only those who need us but those who need us most, doing quality pieces of work and showing the public what could be done if we resourced things adequately, then withdrawing and finding something else to do. Instead of institutionalising our responses and becoming the slaves of them, we should simply do quality pieces of work and take the matter forward.
There is so much to say and so little time to say it. As I close, I repeat that it would be a sad day if some of the materialistic views of the society in which we live led us to diminish the enthusiasm of an army of volunteers who, in the name of their belief, are doing good work in our community.
My Lords, it is a great pleasure to follow my namesake, with whom my correspondence frequently gets mixed up. I thank the right reverend Prelate the Bishop of Chelmsford for introducing this subject and the Von Hügel Institute for its work. The report made two points. The first was that the Church of England, Christian churches and faith-based initiatives make a significant contribution to the provision of welfare services in this country in all our communities. In that sense, they are echoing the views of Edmund Burke about the “little platoons” of our society, or, as the right reverend Prelate said, the views of Alexis de Tocqueville, about the local associations, or those of Berger and Neuhaus about the mediating structures. In a democratic and free society such as ours, these institutions—which stand between the individual, who has increasing rights but is rather solitary and lonely, and an all-powerful state—play a crucial role. The report identifies churches as fundamental to this role.
The second convincing case that the report makes is that, with notable exceptions such as academies, the church and faith-based initiatives tend to be disregarded by parts of central and local government, the Charity Commission, the NCVO and so on. The title of the Von Hügel report is slightly unfortunate. Certainly, there is a moral dimension to what the Government are doing. It is not that the Government have no compass, but the land that churches occupy is uncharted territory for many areas of government, the Charity Commission and so on. The problem is not a secular conspiracy by civil servants or local authority officials but simply a lack of evidence. We should turn that into ourselves and say that the churches are partly to blame, because we could have done a better job.
Personal debt is an area on which I have done considerable work. I chaired a commission on household debt for the shadow Chancellor and then, with Iain Duncan-Smith and Breakthrough Britain, undertook a further study and so on. I found that many debt counselling agencies had grown up in local communities—as the right reverend Prelate reminded us, “local” means that local people took part and responded to local needs—yet, while organisations such as the Citizens Advice received plenty of funding, the church agencies were below the radar.
What can be done? First, comprehensive and detailed evidence should be collected, such as the study carried out by the right reverend Prelate the Bishop of Liverpool in the north-west. Secondly, the churches must become more professional in terms of developing metrics by which they and faith-based charities can demonstrate a public benefit. Thirdly, any body that issues contracts, whether in central or local government, has to make sure that a certain percentage of them go to very small local institutions. Some 20 years ago when I advised the Prime Minister in Downing Street, we wanted local production in television and we said to the BBC and ITV, “There simply has to be a limit. We have to have ‘X’ per cent local production, otherwise we will never get it”.
In conclusion, moving successfully from an old-fashioned welfare state to a modern welfare society will require the Government to consciously recognise and encourage the churches, simply because they are local, they are there for the long term and they can tap the enormous good will of Christian people who wish to serve others.
My Lords, I am grateful to my colleague the right reverend Prelate the Bishop of Chelmsford for inaugurating this debate.
The Von Hügel report which appeared earlier this year was commissioned by the Bishop of Hulme, Stephen Lowe, who is the Bishop for Urban Life and Faith. Baron Friedrich Von Hügel, who died in the first part of the last century, was an Austrian Roman Catholic baron who spent most of his life in this country. He was of decidedly liberal views and isolated three aspects of the faith communities, as we would call them now: the religious, which is about celebrating and experiencing; the ideological, which, using today’s terms, is what a body stands for; and the institutional, which is the running of it. One could translate all three dimensions almost into a political party, but as I am not a politician, I shall leave it to others to try that exercise—but it would work, because we are all involved in celebrating what we are about, we all have ideals and we also have things to do to run the system. That is where the report hits the target, because it is critical of the Government.
I want to concentrate on just two areas. The right reverend Prelates the Bishops of Carlisle and of Liverpool and any others on these Benches could supply a series of anecdotes and evidence about the importance of the presence of not just the Church of England but the other churches and faith communities in their dioceses. In Hampshire, the dioceses of Portsmouth, Winchester and Guildford—which contains a bit of Hampshire, although there is a border dispute between the counties—organise a neighbourhood care group scheme that involves some 3,000 volunteers. There is every sign that local government recognises this to the extent that we are actually being asked to offer more.
We are asking not to move in and take over but to be taken seriously. Elsewhere, there are areas where we are not being taken seriously. In education, for example, while we get good signals from the upper levels of the political administration, very often at the lower and the local levels it is not quite the same. Government aspirations are sometimes taken in a relaxed way. I know that this is part of the debate about faith schools, but it cannot be ignored. “Faith schools”, like “faith communities”, is an unfortunate shorthand, but that area is important, because it is about the development of the next generation who will inhabit this country. Young people who are queuing up to take GCSE religious studies are not part of our generation, who are imbued with a secularist approach. I am imbued with it, because I grew up with it. The next generation will be different.
Finally, we must not get too cosy with each other. In relations between the church and the Government there must be a certain symbiosis, but if we start to get too cosy with each other, our separate identities are compromised. However, if we start screaming at each other across the barricades, nothing much is achieved. Each side needs to be able to criticise the other; perhaps the Government need to take more seriously the fact that in the Christian religion, for example, there is a strong and worthy tradition of self-critique.
My Lords, I am most grateful to the right reverend Prelate for introducing this debate, which allows me to raise issues around the Government’s policy on, and the opportunities that are available for, faith groups, other charitable groups and all sorts of non-profit organisations to participate in the work of extended schools.
I expect noble Lords are familiar with extended schools—perhaps more than I am—but my understanding is that their objectives are basically threefold. First, they are to provide a childminding service, so that parents can drop off their child at 8 am and pick them up at 6 pm. The child will have an opportunity of having breakfast before school starts, will be safe, have an opportunity to do their homework and possibly be provided with other activities between the close of school at 3.30 pm and when the parents pick them up. Within that framework is the role of providing those young people with facilities for cultural development, such as art, music and drama. The third role is providing the opportunity for sporting activities, exercise and outdoor activities. It seems to me that the second and third of those activities are particularly suited to schools and independent organisations co-operating to make provision for their delivery.
I gave the Minister notice of some questions I wish to ask, which I hope was helpful. First, is it part of the Government’s plan that faith groups and other pro bono organisations should be able to offer services to schools in this context? If so, should anyone wishing to do so approach the schools or should they approach the local authority? Secondly, is this vision that I described actually happening across the country? If so, would it be possible for a small group from your Lordships’ House to visit an extended school which is fully operative? Thirdly, and perhaps most crucially, how will it all be paid for? Do schools have an entitlement to a per capita grant from central government for the provision of extended school work or do local authorities fund it? Can parents be asked to pay and, if so, what happens to those who cannot afford it? Fourthly, do the Government expect charities, faith groups and anyone else providing services to find funding to subsidise their activity? Finally, is it possible for children themselves to work towards generating funds to provide activities that interest them?
It seems to me that the Government’s extended schools programme has enormous potential for good. It could extend to children in maintained schools all sorts of cultural, sporting and socialising activities which today are available in the best independent schools. These activities, when appropriately led, can build self-confidence and develop social skills and emotional literacy, and all these things are of fundamental importance to a child’s success both in school and after he leaves.
My Lords, I am glad that the right reverend Prelate has given us the opportunity to discuss this issue briefly today. It is some 25 years since I had the privilege of working with him at Church House on a committee on social responsibility. With so many right reverend Prelates present, I hesitate to move into the realms of theology but, as an Anglican and a former president of the YMCA in Britain, I believe it is absolutely impossible to be true to the Christian faith without being engaged in society.
I should like to make just three observations from my own experience. The first is that we must always resist the temptation to try, directly or indirectly, to win recruits to our faith by what we do in society. That is totally unacceptable. I believe that we do what our faith demands of us in fulfilling our own beliefs. In fact, it seems to me that cultural sensitivity is an absolute practical manifestation of the real spirit of love. If Christianity does not claim to be about love, what else is it about?
Secondly, I have had experiences in the voluntary sector of a secular type—I was a director of Oxfam, for example—but I have a certain unease about the way in which we have slipped into the language of partnerships. I am not quite sure that the concept of partnership adequately describes what it should all be about. Essentially, we are about empowering—we are catalysts in society. There is now, on the part of government and others, a tendency to talk quite overtly of being there to deliver services more effectively, but we are not service deliverers. Of course, in what we do, we should provide a service—that is what it is all about—but we are about empowering people and enabling society to change. As part of that, we must be uncomfortable advocates. I am very glad that charity law now recognises the role of advocacy in fulfilling charitable commitment. Sometimes advocacy based on the authority and experience of engagement can be one of the most powerful of all services for the disadvantaged.
In this new talk about the interrelationship between the voluntary sector, faith communities and government, we must not throw away the different elements that contribute to the totality of social reality. We must also avoid language which could ever be interpreted as a kind of arrogance. I know from experience that some of the finest voluntary work has been done by my friends in the Islamic and other communities, and indeed by people who, although I do not endorse their position, are proud in their personal integrity to say that they are agnostics or atheists.
My Lords, I very much welcome this debate and should perhaps declare an interest as a lay canon at Winchester Cathedral.
I very much agree with the emphasis on the role of the voluntary sector, churches and faith communities in the diversity of civil society and its crucial role in the culture of a free society. I also welcome the involvement of the voluntary sector and the churches in service delivery, although with the obvious caveats that my noble friend Lord Judd has just mentioned. They bring to it a degree of independence, which perhaps allows them to have a greater capacity for innovation than many state or local government bureaucratic forms of delivery. They perhaps have fewer vested interests at stake and therefore can be more flexible in how they deliver services. Because they are not perceived to be agents of government, many of them also have access to groups and individuals with whom more official government and local government-based services might find it very difficult to interact. They have a strong ethos, which again provides a good framework within which their work can be based, and of course, as was mentioned by the right reverend Prelate, they are also local and have a great deal of local knowledge, which may often escape the more standard bureaucratic forms of delivery.
However, in this new world in which these partnerships will develop between central or local government and the voluntary sector, including faith groups, we must avoid using the terminology used a year or two ago by the noble Lord, Lord Dahrendorf, in his Goodman lecture—that is, we should avoid the nationalisation of the voluntary sector.
Yet, there are pressures in the whole relationship about which we have to be very careful. I think that those pressures would be there whichever Government were in power and going through the process of commissioning voluntary agencies and so forth. First, it seems to me that there will be greater emphasis on the professionalisation of the services offered by the voluntary sector. Certainly, in some voluntary organisations in which I have worked that has been absolutely evident. The danger is that professionalisation, which is a good thing in itself, can create more vested interests, which is precisely what the voluntary sector is supposed to be good at not doing. However, more importantly, it can displace volunteering, which is the rather important aspect of the civil society argument for voluntary sector bodies. So we do not want to displace volunteering with greater professionalisation. Equally, those bodies are handling public money. There will be great pressure for public sector management techniques to ensure that people use public money responsibly—things like benchmarking, targets, and so on—which pose great dangers for the diversity and independence of the voluntary sector. My noble friend Lord Judd mentioned, very eloquently, the important subjects of campaigning and the critical role.
Another very complicated issue is the role of the Human Rights Act. Although the Judicial Committee of your Lordships' House has found that charities offering service delivery are not public authorities, nevertheless they are being paid for by Government. The Law Lords have emphasised the importance of the contract in relation to securing HRA rights, and commissioning bodies may want far more recognition of the human rights implications of service delivery in their contracts. We have to be careful about the panoply of relationships which the receipt of state money may well impose on the voluntary sector.
My Lords, I welcome the opportunity to contribute to this debate and I thank the right reverend Prelate for introducing it. Looking through the recommendations of the report, some of them need a red alert. One suggests appointing a government Minister for religion and social cohesion. I believe that would require a tremendous amount of discussion and I would not be too happy with it as it stands. I also see that the Von Hügel report is mentioned. We could look at it and say, “Yes, it is very much geared to the activities of the Church of England”. It mentions the,
“important roles of bishops, dioceses and cathedrals”.
Who am I to disparage the roles of bishops, and so on, who contribute so much to life? But there are other churches, too. The report does not seem to grapple with them very extensively. It recognises that these recommendations,
“may have some ecumenical potential”.
In our age, to look at anything which does not have an ecumenical potential is to look at something which is not totally effective.
I welcome the presence of my colleague—Methodist-wise—the noble Lord, Lord Griffiths of Burry Port, who has a pew in St Paul's Cathedral. I had the great honour of taking part in a Catholic ordination service and I have also walked with some of the bishops on the heritage march at the end of the Lambeth conference. What a great opportunity it was to work together.
So my first point is, let us be a little bit frugal about Von Hügel. More is needed than we see here. It is a report for a Britain of some years ago and not for the multi-faith society which we have today, in which you do not ask people: “What is your creed?”, if they have any creed at all, but, “Will you join us in building this new society; will you co-operate?”. I note the question about partnership, but the true partnership is with everyone in the community. Strength will come from that.
Last week, I had the privilege of going to Poland to be part of the Barka Foundation which has made it possible for 7,000 Polish migrants in the UK, who were not able to make a go of it here, to go back, in particular to the Poznan area where there are settlements, small factories, farms, housing developments and leisure facilities where people work together. It involves the local authority, the Government, individuals and, of course, the church. It is a multi-faith, multi-faceted organisation.
I look for much more discussion on this report. It seems to me to lack an ecumenical aspect. Those of faith and those who possibly find it difficult to have a faith at all should all be involved in the building up of our communities.
My Lords, in an increasingly interdependent world, I make no apologies for saying that, despite 20th-century developments, it is worth reminding the House that we are still essentially a Christian society. From St Augustine onwards, the church has played a leading role in the development of the British state. The tenets of Christianity provide the essential foundation on which British society, state and community rest. Today, we may need to recognise other religions because of increasing global population mobility, but those tenets are no less relevant because of that change.
The right reverend Prelate the Bishop of Chelmsford asks a very pertinent question because government action in one area raises the question of the broader state. Earlier this year, the position of church schools was questioned by the education department. Those schools, all over the country, generally more successful than their contemporaries, very popular with parents and very well respected, found themselves under pressure as a result of what happened. It is only a short step from wondering about that case to beginning to wonder about the relationship with government in relation to all the other aspects of the work that the church carries out.
As has been so well pointed out, the church is deeply integrated into the community; it works in many areas, particularly in social welfare. The right reverend Prelate the Bishop of Portsmouth stated well the relationship; it is a symbiotic relationship. Once you get into that sort of relationship, there is a worry about the continuity of policy and, more importantly, the continuity of funding coming increasingly from the state. Indeed, when the question of welfare dependency was raised in the debate, I found myself wondering whether the church was not itself in danger of becoming welfare dependent, not that I take that as a serious threat to the church. However, we need to remember that once you build institutions which involve people, there is an obligation for continuity. It is very important that as we build these relationships we commit to ensure that they have certainty of position, but only for so long as there is a need for that particular service.
I would not wish to compare the church with local government, although I spent a long time in that walk of life. Local government is now, of course, welfare dependent on central government. I make no special pleading here, but as we become increasingly dependent on central government funding, we create increasing problems and, worse still, we create the possibility of the Government beginning to believe that they are the source of originality in welfare provision, the source of new ideas and the source of all things good.
One of the other great characteristics of British society is its great diversity, its many sources and many ways of doing the same thing. We have to fight to preserve that. As a result of this debate, I hope that we have made a special plea not for the church, but for the principles on which the church stands, and on which we all rest, to continue into the future. I think de Tocqueville was correct. I look forward to hearing the Minister.
My Lords, I am grateful for the opportunity to discuss these important issues. It is consistent with his considerable contribution to the church’s thinking and action relating to social justice that the right reverend Prelate the Bishop of Chelmsford should have asked for this debate. Situated in his diocese is the ambitious Thames Gateway project in which I know he takes an active interest. The success of the gateway will depend on getting the right levels of engagement with all stakeholders and, in the end, the key stakeholders are local people and local communities.
Noble Lords have raised a great many significant issues that I shall endeavour to address. This debate offers us an opportunity to look at our policies for engaging local people and enabling them to have a greater say in shaping their communities. The role of the voluntary or third sector is crucial in this. Before I go any further, I want to stress that when I talk about the third sector, I include the churches and faith communities fully and unambiguously.
Faith communities bring distinctive elements to the table. Many of them have been shared with us today, and I shall touch on them. It is also fair to say that there are particular barriers to their full involvement as part of the third sector. However, we are aware of them, and they are challenging, but not insurmountable. This debate is an important opportunity for us all to reflect on what progress has already been made and what more needs to be done.
Informed comment on public policy by faith communities has a long history. We need look back no further than 1985 when the Archbishop of Canterbury’s Commission on Urban Priority Areas published its report, Faith in the City. Faiths also bring very practical assets. For example, in 2003, the North-West Development Agency published a report on the economic value of faith communities. It found that through their buildings and volunteers, faith communities contributed over £90 million per annum to the regional economy.
Our recent policies have increasingly reflected the importance of the third sector and faith communities. Let me set out a few examples. In July, we published the empowerment White Paper, Communities in Control: Real People, Real Power. The summary states:
“We want to generate vibrant local democracy in every part of the country, and to give real control over local decisions and services to a wider pool of active citizens.
We want to shift power, influence and responsibility away from existing centres of power into the hands of communities and individual citizens … A vibrant participatory democracy should strengthen our representative democracy. The Third Sector… has much to offer”.
I hope that makes clear that the third sector, and faith communities as an integral part of that sector, are right at the heart of our vision for better places.
These are not mere words. Last month, my right honourable friend Hazel Blears, Secretary of State for Communities and Local Government, launched our Participatory Budgeting: A Draft National Strategy. Participatory budgeting directly involves local people in making decisions on spending priorities. Most importantly, the Participatory Budgeting Unit, the key delivery agency, is a project of Church Action on Poverty, a faith-based organisation located in Manchester. It is difficult to imagine a clearer example of partnership in which the direct implementation of a key central government policy is being taken forward at community level by an organisation with its roots in the values of Christian social justice, not, of course, because it is a faith-based organisation, but because it is fit for the purpose.
I have said that there are many challenges. In July we published the interfaith framework, Face-to-Face and Side-by-Side. It highlighted a number of commitments to ongoing work, in partnership with faith communities, aimed at tackling some of the barriers to capturing the full potential of faith-based organisations. I shall give noble Lords several examples. We are working to refresh and update the Local Government Association’s faith and community guidelines for good working relationships between faith communities and local authorities. We also recognise the need for greater faith or religious literacy among officials to equip them to work more effectively with faith communities, and we are working on a potential project on this. It will address the issue raised by noble Lords about faith groups not simply seeking money or contracts but inherently doing the right thing. Officials need to understand the combination of those delicate factors. We made a commitment to develop a charter for faith organisations involved in service delivery to address perceived nervousness about allocating public funding to faith-based organisations.
Short-term funding is a significant issue which was raised by the right reverend Prelate the Bishop of Chelmsford and other noble Lords. As someone who worked in the third sector for many years, I understand the need for long-term funding, and I am pleased to say that since 1997 we have conducted three reviews of the third sector. Faith communities contributed a great deal to the last review in particular, and the most reverend Primate the Archbishop of York served on its advisory board. All three reviews tackled the issue of short-term funding. We have made considerable progress, and with three-year financial settlements, local authorities are now better placed to offer longer-term funding. Although I recognise what my noble friend Lord Judd said about not chasing after contracts, this is not just about that issue.
Another excellent example is our work in partnership with the Church Urban Fund to publish Believing in Local Action alongside Face-to-Face and Side-by-Side. Believing in Local Action is a series of case studies about the benefits of partnership working between faith communities and the third sector at local level. It underlines the importance of seeing faith communities as part of the third sector.
The obvious question is why we involve third sector organisations in delivering public services. The reason is pragmatic: it works. Among the sector’s strengths is an ability to do things differently and put an individual’s need at the heart of things. The noble Lord, Lord Roberts, spoke about his experience working with Polish migrants and the right reverend Prelate the Bishop of Chelmsford mentioned Jean and her work with young people. We talked about offenders, young and old, who are being supported and about debt counselling. My noble friend Lord Plant talked about the importance of independence and the ethos that drives the services that are delivered. The third sector brings an enormous amount to the table.
Third-sector organisations are most often trusted by the people they work with, particularly the most vulnerable and marginalised. We want to draw on all the sector’s strengths by working together in partnership. Once again, I stress how all that I have said about the third sector embraces faith groups, whose local rootedness means that they often demonstrate these strengths to a high degree.
The Office of the Third Sector is currently conducting a national survey of third-sector organisations. It has questions that will identify faith organisations and help us get a better picture of their circumstances and what issues affect them.
The noble Lord, Lord Griffiths of Fforestfach, and my noble friend Lord Judd introduced an important point on the role of the Charity Commission. Following its successful consultation with independent and black-majority churches, it ran a series of workshops with a range of faith-based charities to learn more about the way they work and to help strengthen their governance and effectiveness. Building on that consultation, and with the support of the Department for Communities and Local Government, the commission is setting up a dedicated unit to work with and support faith-based charities. The Faith and Social Cohesion Unit will provide support and advice to faith-based groups through outreach work, capacity building training and guidance and aims to do a number of things. It aims to engage with faith communities to identify and support organisations that could be, but currently are not, registered with the commission, to assist faith-based charities to improve their standards of governance and accountability and thereby increase their effectiveness, to work collaboratively to achieve and promote well run and effectively regulated faith-based charities and improve the commission’s and wider society’s understanding of faith-based charities.
I shall say a word about some of our departmental strategies. Many government departments have published their own plans for increasing the involvement of the third sector with sections dedicated to faith communities. For example, following a consultation, the National Offender Management Service will soon be publishing a paper on working with the third sector to reduce reoffending. It will include specific commitments to ensure that faith-based groups are involved effectively.
The noble Lord, Lord Northbourne, raised several issues. He clearly outlined some of the objectives of the extended schools service. He asked a series of questions, and I think that it is right for me to write to him with a full response with specific answers the questions that he raised. However, the programme is happening. We are investing a significant amount of money and many local organisations are involved. Suffice it to say that schools are not expected to provide extended services alone, or necessarily to deliver them on-site. They should be working in partnership with local authorities, other schools and local partners, including the private and voluntary sector and community organisations.
We envisage a strong role for the voluntary and private sectors in delivering extended services in partnership with the schools. The services developed in schools should complement and join with other services and providers where they are already in place.
I turned to the importance of community cohesion, where faith communities have a particularly valuable contribution to make. The noble Lords, Lord Dixon-Smith and Lord Northbourne, raised the issue of faith schools. The Government support faith schools. We recognise that they are often in demand locally and make a positive contribution to local cohesion.
This country has a long tradition of promoting co-operation and mutual respect between people of different faiths. The interfaith framework, Face-to-Face and Side-by-Side, aims to increase partnership working with and between faith communities at all levels, from the national to the local, to improve local cohesion. The framework depends on the enormous amount of existing interfaith activity by faith communities themselves.
Before concluding it would be remiss of me not to mention the Von Hügel report. The right reverend Prelates and several other noble Lords, especially the noble Lord, Lord Roberts, referred rather poetically to the Von Hügel report. If noble Lords will forgive me, I cannot comment directly on the report, although it does raise some important issues which we are committed to exploring further with the Church of England and others.
The Church of England has asked for time to discuss the report internally through its structures and to make a formal response to the report and its recommendations. We will wait for the Church of England to complete that process before commenting further.
I have inevitably focused on the Government’s side of things. I said at the beginning that these are complex and challenging matters. I hope that I have made clear that in all our policies and programmes, we are aiming at partnership with the third sector and faith communities. We each have our strengths and our limitations. Real and effective partnership is demanding. It requires us to be open, transparent and, most importantly, honest with one another.
I repeat that we have all achieved a great deal, but there is still more to be done. The Government will continue to strive to equip themselves to work better with faith communities, just as I hope that churches and all faith communities will seek to build their capacity to engage further and deeper in all aspects of public life.
The outcome at which we should all be aiming is not a good deal for government or for faith communities, but better places for people to live—places where social justice and respect for difference help to shape the life of communities. That, I am sure all noble Lords agree, is the real theme of this debate.
I again thank the right reverend Prelate the Bishop of Chelmsford for tabling this important debate and all noble Lords for their valuable contributions.
House again in Committee.
13: Before Clause 10, insert the following new Clause—
“Report on fingerprints and samples
(1) The Secretary of State shall, within six months of this part coming into force, publish a review setting out—
(a) the circumstances in which fingerprints and samples can be taken without consent;(b) the circumstances under which and purposes for which fingerprints and samples, taken with or without consent, may be retained;(c) the circumstances under which information relating to fingerprints and samples may be shared with bodies other than the collecting agency; and(d) the circumstances in which information relating to fingerprints and samples are destroyed.(2) In this section, “fingerprints and samples” includes DNA samples or profiles.”
The noble Baroness said: We now come to a very important part of the Bill, the power to take fingerprints and samples. By definition, the samples are DNA. It is therefore extremely important that we are really clear what we are talking about in the Bill regarding the taking of those samples and their maintenance.
Powers are being given in the Bill that are immediately transferable to any other criminal situation. This is the Counter-Terrorism Bill. Is it anticipated that the powers to be taken here should relate only to counterterrorism or can they be seen across a wider spectrum? We are assuming that they will be across the wider spectrum. In any event, if they are not, the legislation regarding samples needs to be tied up.
The current database for DNA, in particular, is incoherent, incomplete and completely illogical. Not everyone who has been found guilty of an offence is on it, while some who are completely innocent are. There is widespread ignorance and confusion about the use of the information and the rights that individuals have to get themselves removed from a database once they are on it. Under Clause 10, that information will have to be maintained on the database.
That is compounded by inconsistent and disproportionate application of the requirements to destroy information that has been obtained. My two amendments seek clarification on where we are now; the consistent and transparent application of current legislation, to which I just referred; and the proper parliamentary scrutiny of any future changes.
Periodic recommendations from senior sources, including judges and police officers, that the database should be extended to every person in the United Kingdom show just how far the current method of legislation by salami-slicing could go. Government policies, such as the identity card database, show that the appetite for control could be increased. At the same time, the losses of financial and personal information that we have come to expect with depressing regularity from government departments show how little we can trust public bodies to hold such important information safely.
A loss of information from the DNA database on the scale of the loss of child benefit information last year would be catastrophic. Unlike bank accounts, you cannot change your DNA. Once the information is lost or is in the wrong hands, it cannot be regained. The Minister might like to take this opportunity to lay out how widely the Government would like the DNA database to extend. Can he give us a categorical assurance that there is no intention to expand it deliberately to retain innocent people’s DNA?
Our amendments would require a clear assessment of where we are now. Having failed to provide for a proper debate on the matter, the legislation surrounding the DNA database is scattered over several Acts, orders and codes. The Bill will be a further Act. For example, Section 64 of the Police and Criminal Evidence Act 1984, concerning the destruction of fingerprints and samples, has been amended five times since then by legislation. It has been amended by, first, the Criminal Justice and Police Act 2001, secondly, by the Serious Organised Crime and Police Act 2005, thirdly, by the Criminal Justice and Public Order Act 1994, fourthly, by the Criminal Justice Act 1988 and, fifthly, by the Police Act 1996.
Somewhere in the Home Office, I am sure that there are officials who know all the information that Amendment No. 13 would require to be published. However, that grasp of a complex and ever-changing area is not widely shared. This country already has the largest DNA database in the world. How many people are currently on it; how many of those who have never been convicted of a crime are on it; and how many people will be added every year? The Government’s own Ethics Group appreciates this problem; its Recommendations I and J state that there should be further public clarification of the role of the database and that the possibility of a universal repository should be categorically denied.
There is inconsistency with Europe. The inclusion of innocent people on our database not only intrudes on their privacy at home. Police forces in Europe and around the world share information on suspects. This flow of information is likely to expand even further under EU law. On other EU databases, innocent people are not included. If you were to ask the Spanish force for information on a certain person and it responded positively, you could be sure that such a person had a criminal record. The same is not true in the other direction. Our police forces can pass over information on innocent people, the very existence of which indicates a criminal record in the minds of the foreign forces. The fact that these people are on the database automatically gives rise to the assumption of criminality. Have the Government taken steps to ensure that, when such information is handed over, the recipients are fully aware of the arbitrary nature of our database? Do they realise that the unfortunate subject may be guilty of nothing more than a desire to be helpful during the investigation of a crime?
On the right to destroy, the general confusion over the database extends to ignorance over the rights that an individual has in regard to it. How many people know that they can request to have their information destroyed if it has been voluntarily given during the investigation of a case? How many people even think to check what information is held on them? The Government have in past years thrown their support behind increasing awareness of just how important it is to check one’s credit history to ensure that mistakes are corrected and identity theft prevented. Yet they are strangely silent on whether people should exercise the same caution over their DNA. Even when a person makes the request, a chief constable can refuse to destroy the information, with no justification and no consistency.
The Ethics Group has made recommendations in this area. It has not only restated the principle set out in primary legislation that information will be destroyed by default when the investigation has ended but emphasised the need to clarify the exceptional circumstances in which this principle can be broken. Our amendment seeks clear national guidelines on this matter. This debate should be only the start of this. We need a well informed and widespread debate, which includes the public as well as Parliament, on resolving these matters. The proposed new clauses are just one more gesture in trying to resolve the problem of adding to the data that are already being taken. Fingerprints fall into the same category. People’s fingerprints are now being taken all over the place, and they do not know what they are being used for and whether that information is being passed on.
One understands that DNA may be helpful in counterterrorism, but it is seriously not helpful that this information should be kept indefinitely and can be used widely, passed on without consent and without the knowledge that it is being passed on. We already know that the EU has enhanced ideas about DNA transfer and that there are suggestions that children should have their DNA taken at birth. We are building up a database of the whole community that could be used against any members of that community if held in the wrong hands.
This legislation gives us a good opportunity to raise this matter. We want to know whether the powers taken here relate to information already on the general DNA database or to information that will be added to it, and what limitations there will be in maintaining and preserving it. I am sure the Minister will agree that liberty, apart from anything else, is an extremely important aspect and that we in Parliament need to be ever mindful of the fact that the legislation that we pass can be as embarrassing to innocent people as it is to the guilty. We must ensure that the innocent are not jeopardised. I beg to move.
I support the amendment moved by the noble Baroness, Lady Hanham. At the beginning of her introduction to this important amendment, she mentioned the misuse of this legislation. I draw the Minister’s attention to the report in the Financial Times today—he may already be aware of it—that the Treasury used anti-terror powers to freeze Landsbanki’s assets in the United Kingdom. I realise that the Committee will not want to get into a debate on the financial crisis at the moment, but that bit of it must be commented on today. Is it true that the freezing order was issued under the Anti-terrorism, Crime and Security Act 2001, which was passed after the September 11 attacks? If it was, the Government are doing something very serious: using completely inappropriate anti-terrorism powers that they already have, because there was no suggestion that the Icelandic bank was involved in terrorism or other crime. I leave that question with the Minister, and I hope that he will have an answer for me by the time we finish this debate.
I absolutely agree with the noble Baroness, Lady Hanham, that the matter of taking and using DNA must concern us all. I am sure that the Minister has the answer but, as far as I understand it, 1 million people, almost all of whom are innocent, are currently on the DNA database. Whether they can come off the database is entirely at the discretion of the chief constable. The Minister will know, because I have asked a number of Written Questions about this in the past few months, that there are very few examples of chief constables deciding to remove anyone from a database. Indeed, it is hard to imagine that that would ever be a priority for them, given all the other priorities that they have on their desk. They would have to review the whole file, and they are not going to be very fast at removing innocent people from the database. That includes people who gave their DNA voluntarily to help the police to solve cases. This is a disincentive for people to volunteer their DNA in the future, and is one reason why the Government may choose to review this whole situation. People who have been acquitted of a crime also remain on the database. One of the fundamental tenets of British justice is “innocent until proven guilty”. If someone is acquitted, they are deemed to be innocent. Nevertheless, they remain on the database.
The noble Baroness, Lady Hanham, mentioned all the implications there are now of sharing such databases in Europe, so I will not repeat what she said but will say simply that we on these Benches, too, have deep concerns. We will undoubtedly want to return to this subject on Report, because it has particularly deep implications for people who volunteer their DNA, as I have said. I am grateful to those on the Conservative Benches for tabling this amendment.
As the noble Baroness, Lady Hanham, has said, Clauses 10 to 18 seem to cover a very much wider field than the specific matter of counterterrorism. This must be of great concern to nearly all of us, as most of us are disturbed by the massive extension of the fingerprint and DNA databases to include a vast number of totally innocent people. I was pleased to hear the noble Baroness, Lady Miller, talk about returning to this on Report. If they do not get a satisfactory answer from the Government today, I hope that both opposition parties will combine on Report and press the matter to a Division.
I apologise for being late on this. This fingerprint business is something about which I feel very strongly; I have asked Questions in the House about it, especially about DNA samples. The Government’s collecting of everything in these vast databanks, particularly DNA databases, is a serious infringement on our liberties. DNA is disproportionately taken from young ethnic minorities, and if we want a proper society, that is not the way to go about it. The sooner this is brought under proper control, the better.
I have been concerned at the tone of this debate. I apologise to the noble Baroness that I did not hear her opening remarks, but I have listened to the responses, and there seems automatically to be an assumption that holding this material in databases is necessarily damaging to liberty. I should like to remind the Committee of the substantial number of instances in which cold cases have been solved because of data that can now be accessed through DNA databases and fingerprints.
As I understand it, the noble Baroness’s amendment simply seeks a clear statement of how the rules currently work. That would be helpful. I suspect that there is a lot of misinformation and confusion about how the current rules on fingerprints and DNA samples operate. Something which sets that out might be valuable in terms of the quality of public debate.
I thank the Committee for that input. It is clear that everyone in the Committee feels that this is a very complex area. There is a great deal of legislation involved. When this provision was discussed in the other place, it was accepted that there was a need for a much wider debate on the retention and use of fingerprints and DNA samples. Although I do not believe that this debate is the forum in which to do it, there is a need to have that wider debate.
Before I try to explain some of the detail in accordance with what my noble friend Lord Harris was saying—I may be able to expose some of the detail and show that it is not as worrying as some might think—perhaps I may just mention the issue of the Icelandic banks that the noble Baroness, Lady Miller, raised. The assets were frozen in a freezing order under Part 2 of the Anti-terrorism, Crime and Security Act 2001. That applies to all three of them. Freezing orders are not limited to terrorism, so it was not done under a purely terrorist measure. This measure came in because SOCA felt that it was needed for serious crime and things like that, as well as terrorism.
I was not here for that debate. That legislation does, however, include security. We can look in Hansard to find out exactly what was discussed, but the legislation covers anti-terrorism, crime and security. I will get back to the noble Baroness on her question.
I am sorry to press the Minister on this, but “security” here means personal safety and so on, not financial securities. The only possible link that I can see here is that the Metropolitan Police had, as I understand it, considerable assets in the bank.
I do not think that I can comment on that. I will have to go back to Hansard and look at what was discussed during the course of that Bill. I was giving the noble Baroness a clear statement on where the authority came from and what it was. We can look up this separate matter and go into it if we wish.
We have previously had a number of Questions in this House about the freezing of assets, and such questions also emerged when I was the Chancellor. Before the recess the noble Baroness, Lady Williams, asked a Question about freezing the UK assets of Mugabe and his cronies. I think that it would greatly assist the House if at some point we could have a clear statement on what powers there are to freeze the assets of anyone of a dubious nature, for whatever reason. It is a very murky area.
I agree with the noble Lord that it is. I would have to take advice on what can be said about it. We have diverted slightly from this amendment, but I will take the matter away to see whether anything can be done. We will be discussing asset freezing at a later date, so there will be an opportunity then.
The amendments would unintentionally suggest that the provisions would apply to all samples and fingerprints held by the police. As Members of the Committee will be aware, Part V of the Police and Criminal Evidence Act 1984 provides for the taking and retention of samples and fingerprints. The Act also clearly stipulates the purposes for which such samples may be used. The Committee may also be aware that an individual can request that samples or fingerprints held by the police should be destroyed. Such an application is made to the chief officer of the police area concerned and, while destruction is a matter for the chief officer, such a decision is subject to guidance issued by the Association of Chief Police Officers. The guidance, Retention Guidelines for Nominal Records on the Police National Computer, is available on the ACPO website.
I acknowledge the noble Baronesses’ sentiment in putting down these amendments but it is our view that the existing structure under PACE provides sufficient safeguards and protections for the individual. As Members of the Committee may be aware, the position on retention of fingerprints and samples is subject to consideration in a case, S and Marper, before the European Court of Human Rights. The Government have provided a robust defence in that case, and we await that decision from the Court.
However, in this amendment they unfortunately fail to take into account the key element that fingerprints and samples held on the counterterrorism databases are often obtained without the knowledge of the individual. That is the nature of investigating terrorism. It would be wholly inappropriate to compromise or indeed negate an investigation by giving any person a statutory power to require the police to disclose what information is or may be held by them. I will strongly resist these amendments as they will fundamentally change the system for the retention and use of fingerprints and samples, to the detriment of counterterrorist operations protecting our national security, as set out in this Bill.
The primary purpose of Clauses 10 to 18 is to make sure that retained samples can be used as effectively as possible. Clauses 10 to 13 provide equivalent powers, procedures and safeguards for the collection and use of fingerprints and non-intimate samples collected from those on control orders with those collected after arrest under the relevant legislation for the jurisdiction involved, such as the Police and Criminal Evidence Act 1984. Clauses 14 to 18 have three specific aims: putting a counterterrorism DNA database on a firmer legal footing; allowing fingerprints or samples taken under the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to be used for national security; and making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the national DNA database. In Clauses 14 to 18, we are not creating any new powers to take fingerprints and samples.
Amendment No. 13 sets out the contents for the proposed report on fingerprints and samples. I do not believe that it is necessary to require the Secretary of State to issue such a report as the issues raised in the amendment are already dealt with. First, the report would require the Secretary of State to set out the circumstances in which fingerprints and samples can be taken without consent. That is unnecessary, as the situations where this can arise are already clearly stated in primary legislation, or will be with the passing of this Bill regarding control orders.
Subsections (1) and (2) of Clause 10 insert provisions into the relevant sections of PACE setting out clearly when fingerprints and samples can be taken from individuals without their consent. Equivalent procedures and safeguards that would apply in those circumstances will apply in relation to fingerprints and non-intimate samples taken from controlled individuals. In Clause 18, it is clearly set out how the police can obtain fingerprints and samples during covert operations under Part III of the Police Act 1997 and under Part 2 of the Regulation of Investigatory Powers Act 2000. Given the clear presentation of the situations where fingerprints and samples can be taken without consent, I see the first requirement of this report as completely surplus to requirements.
Secondly, the amendment proposes that the report contain the circumstances in which and purposes for which fingerprints and samples taken with or without consent may be retained. As with the first proposal, this is unnecessary, as the Bill and other primary legislation set out the purposes for which samples can be used. We are using this Bill to standardise the purposes for which fingerprints and samples can be used so that they may be used in the most efficient way possible. These purposes are: in the interests of national security, for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or for the purposes related to the identification of a deceased person or of the person from whom the material came. So a report explaining the purposes for which fingerprints and samples may be retained is completely superfluous.
Thirdly, the amendment would require the report to cover the circumstances in which fingerprints and samples may be shared with bodies other than the agency collecting them. The terrorist threat requires both national and trans-national multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security. For example, where we have an unidentified sample obtained covertly in this country from a person whom we believe to have attended terrorist training overseas, we must be able to cross-check that sample with those held by the country where the training is thought to have taken place. Noble Lords should be reassured to know that, where any sample is disclosed, it can only be done for the purposes I gave earlier.
There are other safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the MPS will liaise with the newly appointed Forensic Science Regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
Finally, the report would have to include the circumstances in which information relating to fingerprints and samples was destroyed. As I have already stated, I accept absolutely that there is a need for a wider debate outside this one to discuss DNA and I have no doubt that this will be included in that debate.
We do not intend to destroy the samples covered in this Bill. The retention of DNA is not an indication of innocence or guilt; it is an important investigative tool which enables the matching of samples from crime scenes with those held on the database. At the same time, it allows for the elimination of people where samples do not match. For example, an estimated 200,000 profiles on the national DNA database would have been removed prior to a legislative change in 2001 to allow samples to be retained indefinitely. From these, about 8,500 individuals have been matched with DNA taken from crime scenes, involving some 14,000 offences. They include 114 murders, 55 attempted murders, 116 rapes and 68 other sexual offences, and a number of other serious crimes.
In conclusion, I believe that the report requested in Amendment No. 13 is unnecessary. We have set out clearly in primary legislation the situations in which fingerprints and samples can be taken and how they may be used, including safeguards. What is more, we have established a robust framework for the oversight of the retention and use of fingerprints and samples to ensure that the legislation is followed. For these reasons, I must resist the amendment and I hope that it can be withdrawn.
Can the noble Lord help me a little on this? If someone is detained for up to 28 days, presumably their fingerprints and a DNA sample will be taken. If they are released as completely innocent, will the fingerprints and sample be destroyed or will they be kept?
As I understand it, the material will be kept unless the person asks for it to be destroyed, at which point they would go through the process I described a few moments ago.
I am sorry; I have only addressed Amendment No. 13 so far. Amendment No. 14 seeks to require the Secretary of State to issue an order containing national guidelines on the fingerprint and sample database. With specific reference to the clauses of this Bill which we are debating, I will resist this amendment. Once again I remind noble Lords that it is not appropriate to have a wider debate on the use of fingerprints and samples in the narrower context of the provisions in this Bill, but I understand the depth of feeling about the need for such a debate, which I agree must take place at some stage.
The amendment requires guidelines on requesting information about the fingerprints and samples held. Access to information held on an individual is regulated by the Data Protection Act. Under that Act, an individual can ask the police what information they hold on them. Information on how to make a subject access request can usually be obtained from the local police station or through the force’s website. The Information Commissioner provides independent oversight of data protection issues, including the retention and use of fingerprints and samples. Given this established system, it seems unnecessary to require an additional set of national guidelines to be published.
Equally, there is a system for requesting the destruction of fingerprints and samples held. People can request the destruction of their sample in the case of those taken under PACE. The policy for samples taken under PACE, in line with the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003, and adopted by chief officers, is to retain, save in exceptional circumstances, all samples from people acquitted of criminal offences or against whom proceedings have not been pursued. The aim of the policy is the prevention or detection of crime, the investigation of offences, and the facilitation of prosecutions and speedy exculpation of the innocent, as well as the correction of miscarriages of justice. The House of Lords supported this policy in 2004 in the Marper case.
There is no legal obligation to remove samples taken under the Terrorism Act. As with Amendment No. 13, I do not think that there is any need for the Secretary of State to issue national guidance, as robust and established processes are already in place. I have outlined why we believe the policy upon which these processes are based is appropriate; namely, that the retention and use of samples taken either covertly from those who are not subsequently arrested or from those under arrest who are not subsequently charged, has played a vital role in many criminal investigations. I am in no doubt that when these clauses become law and the ability to cross-reference fingerprints and samples becomes more efficient, this will be of considerable benefit in the protection of our national security and the prevention, detection or investigation of crime.
In a future debate there may well be considerable scope to debate these principles, but this is not that debate. I have made clear the benefits of Clauses 10 to 18 and outlined the safeguards against the misuse of fingerprints and samples. I therefore ask that the amendments be withdrawn.
The noble Earl is quite right; that, in effect, is what we are saying: they will not be able to ask for them because they will never know. We are putting this on a statutory basis. For the moment, these data are held, but not in a proper database.
If the noble Lord and I found ourselves in chokey together, our fingerprints would be taken. If the police then found that they had made a terrible mistake and decided that we are upright and upstanding citizens of the highest rectitude, we would be released. We can then ask for our fingerprints and DNA samples to be destroyed. However, if the police think we might be up to something but do not arrest us and collect our fingerprints, we have no way of knowing that and no way of asking for them to be destroyed. They ought not to be able to keep fingerprints like that. The noble Lord says that it is part of the great debate, but it has been creeping on and on and ought to be dealt with as soon as possible.
I am worried that the more the Minister seeks to reassure us the less reassured I feel. He said that now is not the moment to debate this issue; that the Bill is not the right place to make a stand on it. I completely disagree. Clause 10 will allow a constable to take a person’s fingerprints without the appropriate consent if the person is subject to a control order. If you are subject to a control order, you have not even been through a process of law; you have not been through a criminal process. This widens out incredibly the ability of the police to take these samples and now is the point to make a stand.
If the Minister and the noble Lord, Lord Harris, want a national database to make it entirely fair, that would be a completely different argument. The Minister said that having these samples on a database has helped to solve many crimes, but that is a completely different argument. We are talking here about people who have not even been through a process of law.
We have three tiers of people at the moment: those who have been convicted and are on the database—and no one is arguing against that; those who have been picked up under the terrorism Acts and who are subject to a control order, or who have volunteered their DNA, who will stay on the database because no chief constable will remove them unless they write to him 20 times, and even then he probably will not; and those who are lucky enough not to be on a DNA database but among whom there may be many criminals. It is not a logical position and I am surprised that the Minister does not feel that this is the point to have the fight about it.
I was not arguing for a national database with everyone on it, although there is a debate to be had that that might be fairer and clearer for everyone. However, it is genuinely the case—I have detected this in the discussion that we have had in the Committee today—that there is a lack of clarity and understanding of what the current law says about different things. As I understand it, if you are arrested but not charged, your DNA can be taken and retained. As I understand it, that is the situation that exists. It is quite likely that I have got it wrong but I suspect that, with the exception of a handful of the noble Lords who are present today, none of us is clear about what all the different provisions and requirements on the DNA database are. Therefore, something which is set out in one place as an aide memoir for everyone—which would save having to plough through statutory law—would be extremely helpful.
I was not arguing that there should automatically be a database on which everyone was included, although there is a legitimate debate to be had on that on which you can come down on one side or the other.
I thank my noble friend for that interjection. There may be some merit in it which needs looking at. As regards the amendments to this part of the Bill, we have not yet got to the argument about people under control orders. The Bill does not add anything new. No new groups of people will have samples taken; nothing new is being added. This part of the Bill relates to information that is already taken and held by the security services, not the national database. It is intended to rationalise that information, hold it properly and deal with it in the same way.
That is why I do not believe this is the right time to open up the much broader debate—which we will need at some stage—because there is nothing new in the Bill. We will not be going out and taking any more samples than are being taken at the moment. Samples—the covert and other material—are already taken and already held on lots of files all blobbed up together. That is how the information is held and it is better to have that rationalised and able to be used. That is what this part of the Bill is about. It is not about anything new being taken and it does not relate directly to those under control orders, which we will come to with the next amendment.
I am sure that the noble Baroness, Lady Hanham, will be cheered to know that it sounds as though the Government and the noble Lord, Lord Harris, are agreeing with her Amendment No. 14. However, given the worries at the start of the debate about the definition of national security and what it encompasses, will the Minister write with a definition of what falls under national security before Report?
I am grateful to everyone who has taken part in the debate. It is interesting that we say we should have a debate on this issue on some occasion when it is very seldom—or, perhaps, more often than not—that we have a debate within legislation which would enable us to change a situation. We can sit in the Chamber and discuss DNA for three or four hours on a day when we have a debate on the subject, but nothing will result from it because it is not legislation and it is not amending legislation. So the opportunity presented by the proposed new clauses has been helpful because it has underscored the fact that most noble Lords who have spoken have considerable concerns about who is on a DNA/fingerprint database and how you get off it.
I am more worried by the Minister’s replies than I was at the outset of the amendments. Both the Minister and the noble Lord, Lord Harris, who intervened, have a general assumption that this collection of DNA—whether it is from those who are criminally involved or have had a case proved against them, or from those who are totally innocent but have come across a situation where there is a need for a DNA sample to be taken and filed—is completely inchoate. It is impossible for people to know or challenge what is there. It is all very well to say that a chief constable can be asked to provide information, but that will take a big effort—it is probably worse than trying to chase down your bank card and finding out whether or not there is a black list.
We cannot be light hearted about the collection and holding of information on people. There are perfectly reasonable grounds for taking samples and keeping them for a certain length of time while inquiries take place and, indeed, when they are to be used in evidence, but the whole question of more and more people finding themselves on a database—which, as the noble Lord, Lord Harris, said, can be scrutinised and interrogated to see whether they may or may not have been involved in a criminal offence—is extremely alarming.
I hear what the Minister has said and what other noble Lords have said. I am not prepared to not return to this; we will almost certainly return to it on Report. As I said, it has raised almost more anxiety in me than I had when I tabled the amendments. The fact that these provisions are splattered throughout legislation is one of the reasons why there should be a pulling-together of where all that information is. It is not a matter that only the security forces and the police should know where the information is; people should not have to scurry around trying to find out what legislation refers to which bit of something that belongs to them. My DNA is mine—it is me; it is what characterises me; it is what makes me. My fingerprints are unique, as far as I know, and my DNA is unique to within 14 million to one, or something similar, and so it is immediately identifiable. We cannot have the security services saying that they want to hold on to this information because it is so obvious to whom the DNA and fingerprints belong. We have to strike a balance between security and liberty. I believe that we are far outside the area of liberty. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Clause 10 [Power to take fingerprints and samples: England and Wales]:
15: Clause 10, page 7, line 5, after “constable” insert “, with the authority of an officer of a rank no lower than inspector,”
The noble Baroness said: This group of amendments is intended to be probing. Clause 11 deals with the power to take fingerprints and samples in Scotland, and is explicit in requiring a constable to get the authority of an officer of a rank no lower than inspector—here we are again—whereas that is not the case for England and Wales. Clause 10 simply requires a constable’s authority to take fingerprints and samples. I am simply trying to understand a little better why the Government are not seeking the additional safeguards for England and Wales that are provided in Scotland. I beg to move.
The provisions in Clauses 10, 11 and 12 intend to regularise police powers across the UK to take routinely, use, store and retain fingerprints and non-intimate samples of individuals subject to control orders.
To demand authorisation from an inspector or above in England, Wales and Northern Ireland would create an unnecessary difference between the current framework under PACE and that for control orders. The public consultation exercise on the review of PACE has clearly shown that the current framework works effectively. To introduce a further tier to that framework would cause confusion and place unnecessary demands on operational resources. Consequently, we do not believe that there should be an exceptional level of authorisation for the collection or use of fingerprints and non-intimate samples for individuals subject to control orders.
In the other place, the Minister of State for Security, Counter-Terrorism, Crime and Policing accepted there was a wider debate to be had about PACE, although he disagreed with the argument that the levels of authorisation should be raised as a result of that debate. But he emphasised that it is not appropriate to debate the wider issue of the levels of authorisation contained in PACE and PACE Northern Ireland in this specific, narrow context.
In Scotland, as I have said, under the 1995 Act the taking of some but not all samples requires the authorisation of an inspector or above. So, again to avoid the confusion that would be caused by having two different regimes for the taking of fingerprints in Scotland, Clause 11 mirrors those standard requirements for the taking of fingerprints or samples of individuals subject to a control order in Scotland.
On a more technical level, it is worth noting that if the intention of these amendments was to mirror Scotland, they are, on that basis, flawed too. First, authorisation from an inspector is required in Scotland in relation to only some, but not all, samples. Fingerprints are one of the samples that do not require inspector-level authorisation in Scotland. These amendments propose inspector-level authorisation for taking all fingerprints in England, Wales and Northern Ireland. Secondly, authorisation from an inspector is not needed in Scotland for a constable to require an individual to attend a police station to have samples taken; these amendments propose that there should be such authorisation in England, Wales and Northern Ireland.
In two respects, therefore, the amendments go beyond the position in Scotland. There is also a third technical point to note: the amendments are inconsistent in their impact on the operation of the powers in England, Wales and Northern Ireland. The amendments raise the level of authorisation required for the taking of fingerprints, but not for the taking of non-intimate samples. Thus, while the intention may have been to mirror the position in Scotland, it is only a slight simplification to say that in practice these amendments would mean that the position in England, Wales and Northern Ireland would be opposite to the position in Scotland.
I hope that explains the reasoning. In conclusion, for both principled and practical reasons, I disagree with the amendment.
I am grateful to the Minister for clarifying that position. If the clause was intended to regularise issues, perhaps we should all have been in the same boat and not had a different provision for Scotland. However, I understand the differences that he has explained for me. I will not pursue this any further, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
17: Clause 10, page 7, line 22, leave out subsection (4)
The noble Baroness said: I shall speak also to Amendment No. 20. Clauses 10 and 12 deal with the power to take fingerprints and samples. I have great difficulties with Clause 10(4) and Clause 12(5), which deal with the retention of those samples, particularly their retention for purposes other than that for which they were originally taken. This is an area that these Benches have always challenged and I make no apologies for doing so yet again.
Two principles are in play in English law at the moment. Fingerprints are not retained after the event in the case of people who are not accused of any offence, but DNA samples are. Many people, as we have heard, have been critical of the fact that, irrespective of whether they have been released without charge or acquitted in a court, a group of people have had samples taken that are retained in a database. The rest of us who have never been arrested, charged or put before a court are not subject to that requirement—we do not have to give samples. The database, therefore, is made up of a skewed sample. It is illogical to have a database of those who have been found guilty of a crime and those who have expressly not been found guilty of a crime but who have their samples retained.
The issue is compounded when we are dealing with control orders, which we will move on to. Control orders are exceptional as a class of punishment. They are a punishment without findings of guilt—effectively, punishment on suspicion. They are a way of ensuring that people are not a danger as a pre-emptive measure, rather than post-charge and post-finding of guilt. Therefore, to retain fingerprints and samples from such a person, against whom no charges have been made or put and against whom no case has been proven, seems to be, at the very least, dubious. To do so after these samples have fulfilled the purposes for which they were taken is dubious in the extreme. We need to take great care to examine whether this measure is proportionate and appropriate and to examine the value that it will have. I beg to move.
This amendment was debated extensively in the other place and the Government’s position has not changed. The purpose of Clause 10 is to put the power to routinely take fingerprints and non-intimate samples of controlled individuals in England and Wales on an equivalent basis to the existing police powers in relation to fingerprints and non-intimate samples taken after arrest. Clauses 11 and 12 do the same for Scotland and Northern Ireland respectively.
The current procedures in England, Wales and Northern Ireland normally allow the retention of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken. This will be under the provisions of PACE or PACE Northern Ireland, or the equivalent provisions in Schedule 8 to the Terrorism Act 2000, which also apply in Scotland.
We do not believe that fingerprints or non-intimate samples taken from controlled individuals should be subject to different rules in relation to their retention. First, we consider it appropriate that fingerprints and samples of controlled individuals should be retained on the same basis as samples taken from other individuals under PACE, PACE Northern Ireland or the Terrorism Act 2000, since controlled individuals are by definition suspected terrorists. It is worth reminding noble Lords that, under those provisions, fingerprints and samples of individuals are kept even if the individual is not charged.
Secondly, and related to that, the same safeguards and provisions apply as for other fingerprints or samples taken under PACE, PACE Northern Ireland or the Terrorism Act 2000. For example, the samples may be used only for certain defined purposes.
Thirdly, on a practical level, the retention of these fingerprints and samples may help the police and agencies with future criminal and terrorism investigations. By retaining controlled individuals’ fingerprints and non-intimate samples, we strengthen the ability of the police to prevent, detect and investigate such crime and terrorism and we increase the chances of the individuals responsible being prosecuted.
I hope that noble Lords support this, given the preference of everyone, particularly the Government, that we prosecute suspected terrorists rather than use a control order on them. Noble Lords will be well aware that there have been many successful prosecutions of serious criminal offences as a result of retaining samples that would previously have been destroyed.
Lastly, we do not in any case think it appropriate to debate the wider issue of retention of fingerprints and samples contained in PACE, PACE Northern Ireland or the Terrorism Act 2000 generally in this specific narrow context. That does not mean that there is not a case for a wider debate, as we discussed earlier.
The noble Lord has now said several times that there is a need for a proper debate on this. Those of us who take a very dim view of the Government’s creeping practice would like to know when this debate is going to take place and if, as a result, there will be a proper received view of what should be done. Is there any likelihood of the Government doing anything about it or is the Minister just using the need for a debate as a defence for the present clauses in the Bill? As the noble Baroness just said, it is difficult to pin the Government down. This is a serious and growing problem, which is a danger to our liberties.
I am grateful for the support from the Conservative Benches. I thank the Minister for his response, which has been of a general nature. Perhaps much more debate is needed around the area of taking fingerprints and samples that are kept even if a person is not charged. The Minister said that the retention may help in future. I am sure that that is so, but a great many individuals would be caught in this net rather than the specific people for whom I think this legislation, which is to counter terrorism, is designed. The Bill is aimed not at people who are committing general or even serious crime but specifically at counterterrorism. I am grateful but again disappointed to hear the Minister’s response. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 10 shall stand part of the Bill?
Clause 10 deals with the taking of fingerprints and non-intimate samples from those subject to control orders. As my noble friend Lady Miller of Chilthorne Domer said on Amendment No. 14, these are people who have not been through a process of law.
The need to legislate specifically to allow fingerprints and DNA to be taken from those on control orders underlines fundamental problems of process. One consequence of creating a quasi-judicial system outside criminal law is that the normal procedural and ancillary policing powers associated with the criminal process do not apply. Anyone arrested for recordable offences, which include offences as trivial as begging, can currently have their DNA taken and permanently retained, even if they are not convicted or even charged. The result is a policy anomaly where allegations of involvement in terrorism—criminality of the highest order, as has been pointed out—through the control order system mean that the police are unable to use powers that are available as a matter of course when investigating suspicion of much lower-level criminality.
We do not have any concerns about the police having the power to take the DNA of those properly arrested on suspicion of committing terrorist offences; that power already exists. However, we are concerned about the proposal to allow DNA samples to be taken from those subject to civil law rather than criminal law proceedings. We hope that the Minister will seriously consider the suggestions that we have made in our previous two sets of amendments, which would go some way towards allaying our concerns. I recognise that the Minister has spoken at great length on this area. This is the last chance, at this stage, to deal with it.
Currently PACE makes no specific provision for individuals subject to control orders, so such persons are not subject to the same powers and safeguards for the collection and use of fingerprints and non-intimate samples as those who are arrested in connection with a criminal offence. This clause will provide the same powers to the police as well as, importantly, the same level of safeguards to those subject to control orders.
The PACE framework of powers and safeguards is both well established and highly regarded. As such, it provides the most appropriate and obvious structure in which to include provision for the taking of fingerprints and non-intimate samples from controlled individuals.
Control orders are an important tool—just one of many—in our fight against terrorism. Since their introduction in the Prevention of Terrorism Act 2005, they have helped to manage the risk posed to the public by the small number of suspected terrorists whom we can neither prosecute nor deport. Without some disruption of their terrorism-related activity, I have no doubt that these individuals would be free to continue to facilitate or execute acts of terrorism. That is a risk that the Government are not prepared to take.
We are committed to introducing measures that increase our effectiveness in disrupting, preventing and restricting terrorism-related activity, including in relation to control orders, and assist in more general criminal investigations and prevention purposes. Clause 10 will help to deliver this. This clause applies in England and Wales only; similar powers for Scotland and Northern Ireland are in Clauses 11 and 12.
Fingerprints and non-intimate samples can already be taken from individuals subject to control orders if it is necessary and proportionate to do so by including an obligation to this effect in the control order. However, this will be for very limited purposes connected with monitoring compliance of the order. The purpose of the clause is to provide equivalent powers and safeguards in relation to individuals subject to control orders as currently apply when arrests are made under PACE.
By definition, individuals subject to control orders are suspected terrorists. Such individuals should be subject to equivalent powers and safeguards for the routine taking, use, storage and retention of fingerprints and samples as currently apply when arrests are made under PACE. This clause delivers that. It provides the police with a routine power to take fingerprints and samples from controlled individuals, allowing the police to store and retain them and to use them for the wider purposes set out in PACE as amended by other provisions in the Counter-Terrorism Bill. The wider purposes are: serving the interests of national security; the prevention or detection of crime; the investigation of an offence; the conduct of a prosecution; or the identification of a deceased person, as I said previously.
Crucially, the clause also ensures that the same safeguards apply; for example, the samples may be used only for certain defined purposes and a constable is required to inform the individual concerned of the reason for taking the fingerprints or sample without consent before they can be taken. Moreover, the measures set out in the clause will also help in the investigation of criminal activity. By taking and retaining criminals’ fingerprints and samples, we strengthen the ability of the police to prevent, detect and investigate crime and increase the chances of such individuals being prosecuted. As a result, these powers may help to get suspected terrorists off control orders and into the Government’s preferred route of prosecution, which I know this Chamber supports. Noble Lords will be well aware that, in general terms, there have been many successful prosecutions of serious criminal offences—I have mentioned the numbers—as a result of retaining samples that in the past would have been destroyed.
This is a minor, proportionate amendment to existing PACE powers that will better enable the Government to manage the risk posed to the public by suspected terrorists—we are talking about 16 at the moment. Without these powers, the police would not be able routinely to take, use, store or retain fingerprints and samples of individuals who are suspected of facilitating or executing acts of terrorism and are on a control order but whom we have not been able to arrest or charge. Putting the new powers on an equivalent basis and in the same legislation as existing police powers in relation to fingerprints and samples ensures that the same procedures and safeguards apply.
I again thank the Minister for his considered response, which is exactly what I expected. As we have gone through Clause 10, it has felt as though we have been flogging a dead horse. Nevertheless, I have great concerns, which have been echoed across the Committee. The Minister referred to the powers as being “minor” and “proportionate”; they are anything but, and we may come back to them on Report.
Perhaps the Minister will clarify something. I apologise for not having taken part in this debate previously, but I have followed the anxieties about the clause that have been expressed in newspapers. I cannot quite see what all the fuss is about. As I understand it, if a person is thought to have committed an offence, he can have his DNA and other samples taken. The argument is whether the police should be allowed to keep it. The Government interfere horribly and far too much with all our private lives and this is a very sensitive issue. However, if the police keep a person’s DNA, what does that matter unless they subsequently commit a crime? If they commit a crime, whether it is a terrorist crime or whatever, the DNA is available to help to find them. If they have not committed a crime, they have nothing to worry about. The idea of the police hanging on to those samples sounds terribly intrusive, but, unless a person commits a crime, the samples will not be of any use.
I am delighted that the noble Earl has made that point. When we have our wider debate about DNA, it will be absolutely valid. I am sure that the parents and loved ones of the many people who have been murdered and raped, with the perpetrators found only because of DNA, would argue exactly the same. However, I am equally aware of all the other arguments to do with civil liberties. We need a much broader debate, because there are many different perspectives. I accept exactly what the noble Earl has said, but there are other sides to the argument and we need that broader debate. However, I could not agree more with some of what he said.
Clause 10 agreed to.
Clause 11 agreed to.
Clause 12 [Power to take fingerprints and samples: Northern Ireland]:
[Amendments Nos. 18 to 20 not moved.]
Clause 12 agreed to.
Clauses 13 to 17 agreed to.
Clause 18 [Material not subject to existing statutory restrictions]:
21: Clause 18, page 14, line 5, leave out “(whether”
The noble Baroness said: This subsection allows a law enforcement authority to use information not held subject to existing statutory restrictions in the prevention or the detection of a crime. It applies even if the act is not an offence under UK jurisdiction, if it is a criminal offence in another country. That would seem to allow for some odd investigations, for example, in the case of adultery or alcohol consumption, which are illegal in certain Middle Eastern states. Will the Minister help me by giving some examples of situations where information not held subject to existing statutory restrictions might be used in the investigation of an act that is a crime in another country, but not in the United Kingdom?
Why does this subsection not refer to criminal offences which correspond to a crime under the law of part of the UK, as the Bill does elsewhere? It deals with information that has been obtained and held by unusual means. It may often be sensitive information. We have tabled the amendment to ensure that the information can only be used in a responsible way which corresponds to laws passed in the UK. At this stage it is a probing amendment, but how probing it is depends rather on the Minister’s reply. I beg to move.
This is another section of the Bill that causes a certain queasiness. It is only right that the amendment should have been moved. I very much support the fact that it has been. There is a recent case of somebody having been arrested under an EU warrant for a crime which is not a crime in this country.
We are talking under this Bill, as far as I understand it, about counterterrorism. However, the wording of these clauses would throw this far wider than anything to do with counterterrorism. This would be a criminal offence far beyond counterterrorism. If we are not careful we jeopardise the safety of our own residents and our own people if we are going to help in the prosecution of a crime committed or potentially committed elsewhere that is not a crime in this country. It depends on the level, but it is a slippery slope. I support the inquiry within the amendment and look forward to the Minister’s reply.
The provisions on the retention and use of fingerprints and samples have three objectives: first, putting a counterterrorism DNA database on a firmer legal footing; secondly, allowing such samples taken under the Police and Criminal Evidence Act and the Police and Criminal Evidence (Northern Ireland) Order to be used for national security; and, thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act to be placed on the National DNA Database.
Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restrictions on a statutory footing permitting law enforcement use for certain purposes. This material includes samples obtained covertly under Part III of the Police Act 1997 and Part II of the Regulation of Investigatory Powers Act 2000. For example, under the Police Act, a warrant may give the police the power to enter someone's home and take away some property in order to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. Unlike the Police Act it does not allow the interference with property.
However, during surveillance, a DNA sample may be lawfully obtained from property without the type of warrant in the Police Act. A good example of this might be where a person under surveillance discards a cigarette or a drinks container. The discarded cigarette or drinks container can be collected covertly and a sample taken. Or, should a covert human intelligence source be used, the person under surveillance could visit the source’s house and the sample could be taken from a tea-cup. It also includes material supplied by another law enforcement authority which, by virtue of Clause 18(5), includes both domestic and foreign law enforcement authorities—for example, the French police.
Finally, the provision applies to samples otherwise lawfully obtained in the interests of national security for the prevention/detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such latter material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, during a search, from a crime scene or lawfully provided by a body other than another law enforcement authority, perhaps from the intelligence services of another state.
DNA and fingerprint material obtained in this way will form the material that is stored by the Met on the CT DNA database. The principal purpose of Clause 18 is therefore to provide a firm legal base for this database.
These amendments to Clause 18 seek clarification on the samples against which DNA and fingerprint samples obtained through legal covert surveillance can be checked. The amendments seek to prevent DNA samples and/or prints lawfully held by a law enforcement authority being used for the purpose of preventing or detecting a criminal offence under the law of a country outside the UK.
The terrorist threat requires both national and transnational, multi-agency co-operation. It is important that we are able to share our data with national and international partners so that we can properly protect our national security.
Clause 18(4), to which these amendments apply, defines “crime” as,
“a criminal offence … under the law of … the United Kingdom or of a country or territory outside the United Kingdom”.
The effect is that covertly acquired samples can be checked against other samples for, among other things, the purposes of a criminal investigation in the United Kingdom. Additionally, our covertly obtained samples can be checked against other samples, including those held by a foreign Government or agency, for the purposes of, among other things, a criminal investigation in a foreign country—terrorist training, for example.
We are resisting these amendments because there is a real need to share this data internationally, especially where terrorism is concerned, and there are appropriate safeguards in place. For example, we may have obtained samples during a covert operation of a group of individuals we believe to be involved in terrorism. Some time later, a sample may be found overseas by a partner agency that arrests an individual at a terrorist training camp. Clause 18, unamended, allows us to check the samples we hold, which are not subject to statutory provisions, with samples held overseas. The clear benefit of such comparisons is that we can build up a much better picture of the dynamics within complex terrorist networks which span the globe. This is currently crucial to counter the threat that we face. Being able to build up this clear picture is of great and tangible benefit to our national security.
There are safeguards against the abuse of samples held subject to Clause 18. In line with his existing powers, the Information Commissioner will provide independent oversight of the database with regard to data protection issues. Additionally, the Metropolitan Police Service will liaise with the newly appointed forensic science regulator to establish standards for DNA analysis, validation of the CT DNA database and protocols for international exchange of DNA data. Working with the custodian of the national DNA database, the MPS will ensure compliance to standards it has set, which are accepted and adhered to by forensic laboratories. Additionally, it will work with the custodian to develop new protocols for cross-searching between the national and CT databases, ensuring that public confidence, counterterrorist investigations and national security are not compromised.
Noble Lords will be reassured to know that this definition of crime is already included in paragraph 20(4)(a) of Schedule 4 to the Terrorism Act 2000. I hope that I have been able to reassure the noble Baroness and that she is able to withdraw her amendment.
The Minister’s detailed reply was a lot more reasonable, and sounded much better, than what is actually in the Bill. He consistently referred to terrorism and associated acts that might lead to terrorism, such as training camps. In fact, however, the subsection I seek to amend just refers to a “criminal offence”, which is of course much wider. My question in moving the amendment was why the subsection does not refer, as the Bill does elsewhere, to criminal offences which at least correspond to crime under UK law. Even if he cannot do so now, can the Minister give me some examples of situations where information might be held involving an individual committing a crime in a country where it was a crime—the consumption of alcohol, for example, which is certainly not a crime here?
However, the bigger issue is that the Bill refers to criminal offences and the Minister’s reply was to do with crimes of terrorism. If the subsection said that, we would have far fewer worries about it. There would then be an international understanding of what sort of crime we were talking about. The subsection is drafted very widely; perhaps we could have a discussion about that between now and Report to see if there is room for movement. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 22 not moved.]
Clause 18 agreed to.
Clause 19 [Disclosure and the intelligence services]:
23: Clause 19, page 15, line 4, at beginning insert “At the request of the intelligence services for specific information,”
The noble Baroness said: Clause 19 permits people to disclose information to the intelligence services to further the exercise of their functions. This probing amendment seeks to discover whether the Minister envisages that the intelligence services will request specific information in response to a particular threat, or whether they will request the systematic release of general information.
The clause seems to allow the routine release of information en masse on the understanding that it might be relevant to the functioning of the intelligence services. This information dumping is unreasonable. Therefore, the amendment suggests that targeted information only should be released, not broad swathes of data which the intelligence services may process just in case they might be relevant. I beg to move.
This picks up the Chinese wall aspect that we discussed about whether information collected during a search, which may bear no relation to the offence being investigated, can be passed to other people. I suggest that the thrust of the amendment is to discover the extent of the responsibility of, for example, police forces to pass information to the intelligence services that they think may be relevant to the latter but which is not relevant to the police inquiry that is taking place. They may have acquired material that they should not have because it does not relate to the offence they are investigating, but can they then pass that to the intelligence services if they consider that it is relevant to the latter? I am not arguing about whether this is right or wrong, but we need to know whether they can do that.
I think I understand where the noble Baroness is coming from. However, I do not think that the amendment would achieve her objective. It seeks to insert:
“At the request of the intelligence services for specific information”.
We believe that would remove the certainty of those individuals who think they know something that they should tell the intelligence services, to enable the latter to do their job, that they can do so in the knowledge that they are acting lawfully. While they could still do so, relying on common-law principles, it is illogical to create a disparity between those being asked by one of the services and those wishing to volunteer, without being asked, information to one of the services. I believe this amendment would create such a disparity. This could lead to the interesting game of someone telephoning the MI5 information number and saying, “I have some information that I want to tell you but I'd be most grateful if you could keep asking me for different specific pieces of information and I'll let you know when you've asked the right question”. The intelligence services would not know what to ask for.
There is no good reason to differentiate between those who have been asked by the intelligence services for information and those who wish to volunteer it. In each case the information can be equally important to preventing an outrage or bringing a terrorist to justice. We should be encouraging and facilitating our citizens, and others, to co-operate with and help the intelligence services to do their work by providing information. For that reason I ask the Committee to resist this amendment. As I say, I do not believe that it would achieve the objective which the noble Baroness seeks.
I nearly intervened several times while listening to the discussion, particularly when I heard the police being accused of going on endless fishing expeditions. That is simply not true. The Minister referred to the difficulty that the amendment might suggest that people cannot volunteer information. People communicate extensively with the Security Service through either its public telephone number or its website. Much of the information that they provide is of little use, but it may contain vital nuggets, which is sometimes passed directly on to the police but is useful in a number of ways.
The noble Baroness’s suggestion that the Security Service either wants or receives dumped information that is not relevant to its functions is wrong and misunderstands the very close relationship between the Security Service and the police in all counterterrorist investigations. There is a daily, hourly, minute-by-minute exchange of information between the two, which is facilitated by police officers sitting in the Security Service operation rooms and by Security Service officers in Scotland Yard, or in the local police force if something is happening outside London. There is a great transmission of information throughout an operation. Actually, the last thing that this House would be arguing for is a Chinese wall between the security and intelligence services and the police, who need to work as co-operatively as possible to achieve the results of countering terrorism.
I understand that this was meant to be a probing amendment, but I reassure the noble Baroness that there is certainly no intention or wish to collect a whole lot of information that is not relevant to the Security Service’s functions, and it would be wrong to do so.
I am very grateful to the Minister for his reply and to the noble Baroness, Lady Manningham-Buller, for her expert intervention. The House is fortunate to have her depth of knowledge. She referred specifically to anti-terrorism work, but the clause is drafted more widely than that, because it refers to,
“for the purpose of any criminal proceedings”.
I hear what the noble Baroness says, and I shall read it very carefully. I shall also read the Minister’s detailed reply. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
24: Clause 19, page 15, line 25, leave out paragraphs (a) and (b) and insert “any contractual or other obligation owed by the person making the disclosure, other than a breach of confidence.”
The noble Baroness said: The amendment would retain confidence breach as a potential consequence of passing information on to the intelligence services.
Clauses 19 to 21 allow for any person to speak to the security services in connection with any of their functions, without breach of a contractual duty or breach of common law duties of confidence. We imagine that those provisions have arisen in response to concerns in specific cases about the willingness of individuals to pass on information. We do not have any comment to make about the provisions with regard to, for example, breach of contractual obligations. We agree that the passing on of potentially valuable intelligence should not be jeopardised as a consequence of concern over potential civil action.
We are more concerned about breaches of obligations of confidence. The special nature of the relationship is, for example, recognised in Section 19 of the Terrorism Act 2000, which created an offence of failing to disclose a suspicion about terrorism arising from a person’s employment. Section 19(5) has a specific exemption; it does not apply to information received from a professional legal adviser. There are other relationships of confidence that we believe warrant special consideration, including medical professionals and religious advisers. Rather than creating a blanket exemption from the possibility of a civil action for breach of any duty of confidence, we believe that Section 19 should recognise the importance of some such relationships of confidence.
It is important to appreciate that these amendments do not mean that any disclosure to the security services will result in a breach of confidence. It simply removes the absolute nature of the provision that there can be no breach of confidence when information is passed to the security services. There is already a defence of acting in the public interest to actions of breach of confidence. In deciding whether the defence applies to a particular claim, a court must balance on the facts the need to enforce obligations of confidence against the public interest in disclosure of the information of the type at issue. Any disclosure in the public interest must have been proportionate for the defence to succeed. I beg to move.
I understand what the noble Baroness is trying to achieve, but I oppose the amendment. The intelligence services fulfil a vital role in keeping safe the citizens of, and visitors to, this country. Information is the key commodity in achieving this. Of course, some of that information comes from secret sources, but we must not overlook the contribution from ordinary men and women in providing the intelligence services with information, as the noble Baroness, Lady Manningham-Buller, said, that they think they should have access to so that the intelligence services can do their job in helping to protect us.
Under common law, a person can, in the public interest, disclose information while under an obligation of confidence or other restriction; that is, they can make a disclosure where this serves a higher public interest than the obligation of confidence. Clause 19(6) makes it clear that this is the case when someone wants to give information to the intelligence services to enable them to do their work.
This amendment would override the principle currently recognised in common law that the greater public interest may lie with protecting national security. It would prevent a person making a disclosure where it would breach an obligation of confidence and suggest that in all circumstances a duty of confidence represented a higher public interest than national security. This proposition is not recognised in common law, nor is it one with which I can agree.
The current clauses provide certainty and clarity to everyone who thinks that they have information that they should share with intelligence services so that they can do so in the certain knowledge that they are acting lawfully. The clauses put the agencies on a similar footing for national security, terrorism and the prevention and detection of serious crime. The Serious and Organised Crime Agency is already on that footing for the prevention and detection of crime. It must be noted that the amendment would not only perpetuate the anomaly between SOCA and the intelligence services, but it would make it worse. With the amendment, a person could give information to SOCA in order to prevent crime, but not to the intelligence services to prevent serious crime or even a terrorist attack, if in doing so they breached an obligation of confidentiality. This cannot be right. I am sure that that was not intended by the amendment.
It must be borne in mind that there is no obligation on anyone to give information to the intelligence services. We are discussing here a situation where a person thinks he or she has information that should be given to the services. It must also be borne in mind that neither service, under their governing legislation, the Security Service Act 1989 or the Intelligence Services Act 1994, can obtain or accept information, except as far as is necessary for the proper discharge of its functions.
That is why this amendment is not just unnecessary but unhelpful and should be resisted, although I understand what the noble Baroness was trying to achieve.
I am grateful to the noble Lord for his care in how he dealt with the amendment and for what he has put on record. That will go a long way in countering some of the concerns expressed. To have responses on record is a valuable way of ensuring that people understand the issues that we are dealing with. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
25: Clause 19, page 15, line 30, at end insert—
“( ) Nothing in this section shall require a person to disclose information to any of the intelligence services for any purpose.”
The noble Baroness said: This is simply a probing amendment to allow the Minister to reassure us that disclosure is entirely permissive and that there is no possibility that the clause may be used in a more aggressive manner to seek information which results in the person from whom the information is being sought feeling that it is not being extracted in a permissive manner. I beg to move.