Committee (9th Day)
Clause 127 : Implementation of E-Commerce and Services directives: penalties
191AA: Clause 127, page 78, line 44, at end insert—
“(2) Where a statutory instrument includes provision by virtue of subsection (1)—
(a) if paragraph 2 of Schedule 2 to the European Communities Act 1972 (c. 68) applies to the instrument, sub-paragraph (2) of that paragraph has effect as if it required a draft of the instrument to be approved by resolution of each House of Parliament or, in the case of an instrument made by the Scottish Ministers, of the Scottish Parliament;(b) if section 59(3) of the Government of Wales Act 2006 (c. 32) applies to the instrument, that provision has effect as if it required a draft of the instrument to be approved by resolution of the National Assembly for Wales.(3) Where a statutory rule to which paragraph 3 of Schedule 2 to the European Communities Act 1972 (c. 68) applies includes provision by virtue of subsection (1), that paragraph has effect as if it required a draft of the rule to be approved by resolution of the Northern Ireland Assembly.”
Government Amendment 191AA responds to a recommendation of the Delegated Powers and Regulatory Reform Committee in its consideration of the Bill. The committee recommended that this power should be subject to the affirmative resolution procedure in the event that new criminal offences with penalties in excess of the limitations set out in the European Communities Act 1972 are introduced using the powers in Clause 127. The clause disapplies those limitations as regards the exercise of its powers for the purposes of implementing the services and e-commerce directives. We are happy to accept the committee’s recommendation and amend Clause 127 accordingly. I beg to move.
Amendment 191AA agreed.
Clause 127, as amended, agreed.
Clause 128 : Treatment of convictions in other member States etc
Debate on whether Clause 128 should stand part of the Bill.
Schedule 15 to the Bill amends domestic legislation pertaining to the consideration of criminal convictions pre-trial, or bail, during trial, which is to say related to character, and post-conviction—the sentencing function of the court—by imposing a mandatory requirement on a tribunal to include convictions from other member states in this consideration. The purpose of the amendments is to transpose into UK law the Council framework decision of 24 July 2008 on taking account of convictions in the member states of the European Union in the course of new criminal proceedings.
The proposal for the framework decision explained that currently there is no consensus between member states as to how convictions from other member states are considered, which is contrary to the mutual recognition principle and puts the citizens of Europe on an unequal footing. The proposal for the framework decision follows a White Paper that sets out that the current system, under Articles 13 and 22 of the 1959 European Convention on Mutual Assistance in Criminal Matters, has three problem areas: the difficulty in rapidly identifying the member states in which individuals have already been convicted; the difficulty in obtaining information quickly and by a simple procedure; and the difficulty in understanding the information provided. I can tell your Lordships that I was in exactly that difficulty earlier this year in dealing with a case involving a person of French nationality who was convicted in Belgium. It was necessary to have documents translated to find out whether he had been convicted in the correct jurisdiction and so on.
To this end, two stages were proposed, the first in which recognition of convictions is established and the second where the means by which the convictions can be obtained is created. Both have resulted in framework decisions setting out the principles to be incorporated into domestic law. A Council framework decision on taking account of convictions must be implemented by 15 August 2010.
A Council framework decision on the organisation and content of the exchange of information extracted from the criminal record between member states was adopted in the Justice and Home Affairs Council on 26 February this year. It must be implemented by 26 February 2012. Article 1 of that decision defined the purpose of the second framework decision as being: first, to define the ways in which a member state in which a conviction is handed down against a national of another member state—the convicting member state—transmits the information on such a conviction to the member state of the convicted person’s nationality; secondly, to define storage obligations for the member state of the person’s nationality and to specify the methods to be followed when replying to a request for information extracted from criminal records; thirdly, to lay down a framework for a computerised system of exchange of information on convictions between member states to be built and developed on the basis of this framework decision and the subsequent decision referred to in Article 11.4.
As the Explanatory Notes to the Bill state, the amendments may not change the existing provisions but simply extend the ambit of a court’s consideration to include foreign convictions, but without a comprehensive and regulated system in place there is no way of effectively recognising convictions from other member states. A second framework decision attempts to achieve this by producing a pro forma by which to understand the non-domestic conviction, but that is not incorporated into the Bill, so the second aim—that people understand the conviction that is recorded against someone in a foreign country—is not incorporated into the Bill.
There are practical problems. First, new Section 73(2)(c) provides that a certificate, signed by the proper officer of the court where the conviction was brought and giving details of the offence, conviction and sentence, will be proof of conviction. This presumes that the type of offence, conviction and sentence are equivalent to that of the United Kingdom, but this will not be the case across 27 countries with different cultural and historical premises on which their punitive systems are based. There is no equivalence across 27 countries that a conviction for a specific offence, for example in the Czech Republic, will have the same effect as or can be married to an offence in this country.
Secondly, where a particular type of offence or repeat offending resulted in a particular sentence under United Kingdom law, the non-United Kingdom conviction would have a significant bearing on the outcome.
Thirdly, there is no mechanism in the Bill to indicate how a tribunal might take account of the information received to take a decision on bail, character or sentence. The point is that these foreign convictions can affect the judge’s decision to grant bail before the trial, to bring in evidence of bad character during the trial and to influence the length and severity of the sentence that is imposed at the end.
Fourthly, there are no provisions by which the tribunal may request explanatory information on the penal or sentencing systems in the other member states on which an attempt to equate the convictions with the UK counterpart can be made. There is no procedure in the Bill to deal with obtaining those foreign convictions should adjournments be granted where full convictions are not to hand or are not understood, thereby extending the period during which a defendant is remanded in custody.
No mechanism is proposed to consider the trial procedure that gave rise to the convictions and whether that should have an effect on its application. For example, how is the tribunal to know whether the conviction was rendered in absentia, which happens in foreign jurisdictions, and whether that complies with United Kingdom law? Irrespective of whether the defendant was present at the trial, was evidence accepted that would be excluded in a United Kingdom case? Did the trial comply with UK standards with respect to representation and/or interpretation? All that the schedule is doing is to take this conviction and say to judges in this country, “You have got to take this into account in the decisions that you make”, even though there is no mechanism for understanding its base, what it means or what particular procedures have been used for that decision.
The framework decision requires the provision of details of convictions rendered in the United Kingdom to other member states, but there is no proposal to deal with how this would be affected. Spent convictions are not protected in the framework decision. It is a longstanding policy in this country that after a particular amount of time a person should have the conviction recorded against him, depending on the seriousness of the offence, regarded as spent.
The Select Committee on European Scrutiny in its second report of 2005, while considering the framework decision, raised this issue. The then parliamentary Under-Secretary of State at the Home Office, Andrew Burnham, now translated into another sphere, in his explanatory memorandum of 23 May 2005 explained that, while acting within the atmosphere of mutual recognition, a spent conviction was a not a concept commonly found in other member states.
We on these Benches wish to ensure that UK nationals do not receive unfair treatment on account of spent convictions. It may be that we would seek to include a reference to spent convictions not being taken into account by an overseas court if that spent conviction would not be taken into account by a United Kingdom court. This was not achieved and the result is that each member state is to take account of convictions in accordance with their national law. It follows therefore that where a conviction is spent for the purposes of criminal proceedings in the UK and would not be relied on in this country, the conviction may still be used in another member state to impose more onerous conditions on a defendant’s treatment.
Article 11 of the second framework decision states that a standardised format should be adopted for the transmission of convictions. To this end a proposal for a Council decision on the establishment of the European criminal records information system in the application of Article 11 of the framework decision 2009 envisages the creation of a system based on decentralised information technology where criminal records data will be stored solely in databases operated by the member states and are transferable. A uniform format for transmission is proposed which adopts a numerical code to identify each crime and method of involvement. A committee is envisaged to oversee the technical developments of the programme. Pilot projects are currently being undertaken.
While we acknowledge that there is an obligation to implement the framework decision within a finite period, passing that obligation on to the criminal justice system by means of amendments proposed in Schedule 15 to an already heavily burdened Bill is an inappropriate means of giving effect to the instruments and tensions and of affording sufficient time to its consideration. Furthermore, now that the second framework decision has been adopted, it is incumbent on Parliament to consider both decisions together in order to give proper scrutiny to implementation measures.
We consider that the wide-ranging effects of Schedule 15 should not be taken forward until the mechanisms for mutual recognition are included. There is no benefit in imposing a mandatory obligation on the United Kingdom criminal courts and on practitioners to take into consideration convictions from other member states when the implementing system by which to do so has not been provided. We therefore oppose the schedule in its entirety and propose that it should be redrafted to give a prominent position to this important change to criminal procedure and to the mechanism through which the principle of mutual recognition can be achieved in practice. As a minimum, an assurance from the Minister that these provisions will not be brought into force until the mechanisms contained in the second framework decision are fully transposed must be forthcoming. It would be a piecemeal approach, but it would allow scrutiny through Parliament of those mechanisms before the courts were obliged to grapple with these provisions.
I hope noble Lords will forgive me for a long exposition of my opposition to the clause and the schedule in question. I have done my best to explain what this is all about. Grouped with the Clause 128 stand part debate is my Amendment 191AAA. It seeks to insert a new sub-paragraph into Schedule 15(1) stating:
“This section does not apply if the defendant can show that his or her conviction imposed outside England and Wales resulted from a trial that would have, if the trial had taken place in England and Wales, breached Article 6 of the Convention rights within the meaning of the Human Rights Act 1998”.
The amendment looks at whether we should take into account in the courts of this country a trial, or the result of a trial, in a foreign jurisdiction which may have been unfair not only by our own standards but by those of the European convention. It suggests that it would be possible for a person to challenge the conviction in a foreign country if he could show that it was in breach of Article 6.
Clause 128 and Schedule 15 amend various Acts. The amendments would ensure that such convictions can be taken into account as evidence of the bad character of the defendant, to impose a presumption against bail, to consider whether a person should be tried summarily on indictment, and in sentencing. But we are concerned about treating convictions obtained in other countries the same as those imposed in United Kingdom courts. The government amendments presume that all European countries have fair and equal trials so that a conviction imposed by a court in an EU member state will have been imposed after a fair trial. But the presumption is seriously open to question, as the number of cases before the European Court of Human Rights for breaches of Article 6 covering the right to a fair trial demonstrates. Serious injustices often occur in the trial process of many European countries. Not only that, we are not necessarily confident about the fairness of trials in all 27 countries. United Kingdom courts should not automatically be required to assume that a conviction imposed in another country is the same as one imposed in a UK court.
Not only is the requirement for convictions imposed by an EU country of concern but hidden away in the detail of Schedule 15 are amendments that relate to convictions imposed in any country—not just those of the EU but those imposed by any other country. Paragraph 1 of Schedule 15 allows for a conviction in any country to be considered when ascertaining whether a defendant has a propensity to commit the offence with which he or she is now charged. Additionally, paragraph 6(3) provides that a previous conviction by a court either in or outside a member state can be treated by the court as an aggravating factor.
The policy of this Government has been to introduce evidence of bad character into criminal trials. That is completely contrary to the common law where people are tried on the evidence of the offence in front of them. Provisions have now been introduced, most specifically by the Criminal Justice Act 2003, to alter that position. But by these provisions a conviction in any country, even one with the most shocking human rights record, can be used as an aggravating factor or as demonstrating a propensity on the part of the defendant facing trial in this country to commit that particular offence. So it is critical, when it comes to evidence of bad character, that the prosecution should not be allowed to grasp a conviction from any country, regardless of its human rights record and trial processes, and use it. There are many countries in which a fair trial cannot be guaranteed and convictions imposed in such countries should not be automatically applied in United Kingdom courts as evidence of bad character or as an aggravating circumstance.
We are also concerned about the proposed amendment to paragraph 3 of Schedule 15 that on the basis of such a conviction there will be a presumption against bail, a presumption that seriously affects a person’s right to liberty. In addition, paragraph 10 raises similar concerns as a presumption against imposing a custodial sentence or service detention under the Armed Forces Act 2006 if a person has been convicted in any member state.
I appreciate that people travel much more than they used to and that convictions in other states may have an important impact on what happens in this country. But buried in this enormous Bill and the diverse subjects it covers is an important breach of principle that these convictions, imposed in any country and certainly in any EU country, can be used to affect the liberty of UK citizens who are fighting a prosecution in our own courts. I apologise for the length of my exposition. I beg to move.
Clause 128 and Schedule 15 implement the European Council framework decision of July 2008 on taking account of convictions in EU member states in the course of new criminal proceedings. Courts will be required to treat previous convictions of other member states in the same way as previous UK convictions. To a large extent this merely sets out what can and does already happen. For example, overseas convictions can already be adduced as evidence of bad character or taken into account in sentencing decisions.
The framework decision requires member states to implement it by August next year. We consider that perfectly feasible because taking account of EU convictions is something that our courts do already. We accept entirely that there needs to be an appropriate mechanism for swiftly obtaining information on previous convictions from other member states in an understandable form that meets the requirements of our courts, and for providing further information where there is a challenge. What we do not accept is any need to delay implementing this framework decision until new EU legislation is in place governing the exchange of conviction data. I say that because there is already a mechanism, through a Council decision of November 2005, that requires member states to send to the UK details of convictions of UK nationals and allow the previous convictions of EU nationals being prosecuted here to be obtained from the home country. Information is obtained through the UK Central Authority for the Exchange of Criminal Records, which has already dealt with well over 20,000 notifications, and in 2008 alone made over 4,000 requests, approximately a third of which showed previous convictions. The authority therefore already has considerable expertise in ensuring a read-across from EU to UK offences, thus enabling UK courts to recognise EU convictions effectively.
We recognise that the number of cases in which other EU member state convictions are requested can be expected to increase over the next few years. Work is under way to prepare for implementation of the related framework decision on the organisation and content of information extracted from criminal records between member states, which must be implemented by February 2012.
Work is also under way to implement the Council decision on the establishment of the European Criminal Records Information System. That provides for the development of a computerised system for the exchange of information on convictions between member states. Together, those decisions will lead to the adoption of a standardised European format to allow information to be exchanged in a uniform way. They will provide an added degree of comprehensiveness, standardisation and modernisation to support a more widespread and routine use of foreign convictions in future.
Ultimately, if the courts are not satisfied that there has been a previous conviction, or that it has a UK equivalent, they simply will not take it into account. We think that the mechanisms already in place should provide the necessary assurance, though, and we certainly intend to make sure that they do. Quite apart from the need to implement the framework decision by the deadline, we believe that there is no need to delay reinforcing in statute what is already being done successfully thousands of times a year.
We would describe Amendment 191AAA as well intentioned but unnecessary. All EU member states are subject to Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial. The framework decision is predicated on compliance with the convention and states that it shall not have the effect of amending the obligation to respect those fundamental rights. It will not be necessary for courts to consider the procedural proprieties of trials in other member states; despite differences in national legal systems, convicted persons throughout the European Union will have had recourse to the same framework of rights by which to challenge the previous conviction if it was procedurally unsound.
With regard to convictions from countries outside the EU, our courts in the UK are obliged to act in accordance with Article 6 so could not properly take into account a conviction that was shown to have resulted from an unfair trial. There is also no material change being proposed that affects countries outside the EU.
No legislation is needed to implement the framework decision on the organisation and content of information extracted from criminal records between member states. As I say, I cannot agree to the noble Lord’s request to defer implementation of the framework decision on taking account of convictions in member states. We are duty-bound to implement the decision by August 2010, and the Government honour our obligations under EU laws.
The noble Lord raised the issue of bad character. The provisions on bad character evidence apply to all overseas previous convictions and are not limited to EU convictions. This is not a change to the existing law but a clarification of it, simply reflecting the position set out by the Court of Appeal in R v Kordasinski in 2006. In that judgment the Court of Appeal confirmed that overseas convictions could be adduced as evidence of bad character under the provisions of the Criminal Justice Act 2003. Nothing in any of the provisions alters or affects our courts in the UK dealing with overseas previous convictions from outside the UK.
As for offences, convictions and sentencing differ across the 27 member states so the provision for proving convictions by means of a certificate from the convicting court will not work. I remind the Committee that a similar provision for proving foreign convictions is in force in Section 7 of the Evidence Act 1851 and has not given rise to challenges. Convictions from other EU member states are not sent direct to the court but are routed through the UK Central Authority for the Exchange of Criminal Records, which has itself built up a body of expertise in how specific types of foreign convictions relate to specific types of English convictions.
I stress that in the overwhelming majority of cases the conviction is accepted by the defendant but, in cases of doubt, legal advice can be sought. We accept that the process of translation of foreign convictions into UK equivalents will not always be straightforward, but we are in no doubt that it is preferable, in the interests of justice and public protection, to make the attempt rather than just simply to ignore foreign convictions.
Having listened to the noble Lord, therefore, I am afraid that I cannot agree with him. We are aware of our obligations under the ECHR, but we believe that Schedule 15 is appropriate, as is Clause 128.
I am grateful to the Minister for his reply. I take from it that it is open to a defendant to challenge the fairness of a conviction anywhere outside the European Union—that if there is an attempt to use a conviction obtained in some foreign country outside the EU against him, he can raise with the judge the fairness of his trial.
I am grateful for that assurance. The second matter that I took from his reply is that unless the nature of the conviction in a European Union country is clearly explained to a judge and shown to be apposite, the judge can ignore that previous conviction.
I come back to the illustration that I gave earlier from my own experience of a person convicted in Belgium—of what he was convicted and whether he had successfully appealed was absolutely unclear. Despite the involvement of Belgian lawyers and requests from the Supreme Court in Belgium, no one was able to clarify precisely what had happened, what he had been convicted of or what his sentence was. In those circumstances, I take it that the Minister would agree that the judge is fully entitled to say, “Well, it’s for the prosecution to show that this is a proper conviction”, and if they cannot do that, the judge can ignore it.
I can say yes to the noble Lord. Any British judge, as I understand it, will not, unless the prosecution can prove it, take into account anything that is not clear to the judge if it is going to make a difference to the way in which the defendant is treated. If it is clear, though, and I submit that in the vast majority of cases it is clear, of course the judge is entitled to take that into consideration, and has been for a long time past.
I accept that that is the case, but that is a useful clarification. If the Minister is not prepared to delay until the second framework decision is implemented, which would set out clearly what each conviction was, what it meant and what its equivalence was in this country, then whenever this issue comes before the Crown Court the judge will be able to ignore such a conviction. That is a fair way of going about it. I will reflect upon what the Minister has said, and I may come back to this at a later stage of the Bill.
Clause 128 agreed.
Schedule 15 : Treatment of convictions in other member States etc
Amendment 191AAA not moved.
Schedule 15 agreed.
Clauses 129 and 130 agreed.
Clause 131 : Retention of knives surrendered or seized (Northern Ireland)
191AB: Clause 131, page 80, line 30, leave out “as follows” and insert “in accordance with subsections (2) to (4)”
Clause 131 requires the Lord Chancellor to make regulations concerning the retention and return of knives seized in court premises in Northern Ireland under new Clause 5A(5) in Schedule 3 to the Justice (Northern Ireland) Act 2004. We had intended that these regulations should be subject to the negative resolution procedure. However, the Delegated Powers and Regulatory Reform Committee questioned whether Clause 131, as drafted, achieves this. These amendments make the necessary changes to the 2004 Act and ensure that the regulations will be subject to the negative resolution procedure as intended. I beg to move.
Amendment 191AB agreed.
191AC: Clause 131, page 81, line 26, at end insert—
“( ) In section 21(3) of the Justice (Northern Ireland) Act 2004 (c. 4) (orders and regulations subject to annulment in pursuance of resolution of either House of Parliament) after “1(4)” insert “, 5A(5)”.”
Amendment 191AC agreed.
Clause 131, as amended, agreed.
Clause 132 agreed.
Clause 133 : Community Legal Service: pilot schemes
191AD: Clause 133, page 82, line 13, leave out subsection (2)
Your Lordships will know of the very considerable disquiet shown over the fact that the Government refuse to provide funding for inquests. It is a matter of very considerable concern when outside interests are represented by counsel and solicitors at those inquests. For example, the military will be represented by the Ministry of Defence counsel and solicitors in a military inquest, while there will be representation for factory owners if there is a fatal accident in a factory, and so on.
With legal aid in Part 6, an amendment is proposed in Clause 133 of this Bill to the Access to Justice Act 1999. The amendment that I propose would leave out subsection (2) of the clause. Section 6 of the 1999 Act allows the Lord Chancellor to make a direction to require funding of cases that would not otherwise be funded in the circumstances specified in the direction. That is a provision that has been used and is used for funding legal representation of inquests of a military kind. Subsection (2) of this clause seeks to amend the current provision to provide that that may apply to,
“one or more areas or localities”,
or specified courts or tribunals, or funding only for,
“specified classes of person”,
“persons selected … by reference to specified criteria; or … on a sampling basis”.
I want to know what that means. This is a probing amendment to find out what impact the amendment may have on the funding of legal aid for inquests.
Representation of the bereaved relatives at inquests is not given automatic funding; there is some funding when the Lord Chancellor gives a direction under Section 6, as presently drafted. That direction will give exceptional funding for certain inquests. We are concerned that this amendment, which is supported by Liberty, could allow, for example, only inquests held in London or only those involving the death of military personnel or British citizens. Given that the stated aim of the Bill is to standardise inquests and reform the system to deliver a more effective, transparent and responsive service to the public, we wonder why Clause 133 would allow such distinctions to be made. Given the importance of inquests in establishing the cause of death in a person and for there to be seen to be a full and public inquiry, as required by Article 2 on the right to life in the European Convention on Human Rights, we hope that the Government will more fully explain this amendment—what its purpose is and what the likely application in practice will be. I beg to move.
Pilots can provide important evidence about the effectiveness and cost of new arrangements for legal aid. Clause 133 will allow us in the future to test new arrangements for civil legal aid, such as new types of advice, new delivery mechanisms, and new eligibility arrangements. As the Legal Aid Minister, I have concentrated as much as I can in difficult times on ensuring that social welfare law and the advice that is given under that law, which is civil legal aid advice, is at least protected. We are looking at all times to see what we can do, particularly at a time of recession, to ensure that those who suffer as a consequence of the recession are at least protected in law so they can get legal advice. Part of the purpose of Clause 133 can be to make the Legal Services Commission more flexible in the scope of what it can do on legal aid spend.
Amendment 191AD is a probing amendment that seeks to remove subsection (2) of the clause, which allows the Lord Chancellor to authorise or direct the Legal Services Commission to fund on a pilot basis cases that could not otherwise be funded. Such a pilot could relate to the funding of cases that may apply to one or more areas or localities or specified courts or tribunals, or funding only for specified classes of persons or persons selected by reference to specific criteria or on a sampling basis. This subsection is an important part of the Bill as it allows us to conduct limited pilots of new arrangements to assess whether they should be implemented more widely.
I understand the noble Lord’s concerns, and those of Liberty, that the pilot provision may be used to restrict access to legal aid. I assure the Committee that it is not our intention to use the piloting provision to do that. The power would allow us to trial extensions of civil legal aid—for example, specialist advice delivered in limited areas, such as in housing possession cases, where of course legal aid is already granted at the door of the court, or more generous financial eligibility limits for particular kinds of legal advice, subject, of course, to the resources being available. I always have to say that.
It is also not our intention to use the piloting provision to amend directions in order to restrict inquest funding. I know the noble Lord feels very strongly about this. It is perhaps worth pointing out that funding for legal representation in inquests was not available at all until this Government changed that in the Access to Justice Act 1999. Directions and authorisations can be amended under existing powers. As I explained during the Committee’s consideration of Part 1 of the Bill, funding for advocacy for inquests is already available on an exceptional basis, when certain criteria are met. There is no intention to use these powers to impose additional restrictions on the availability of funding in those cases.
So the answer to whether we will use the pilot proposal to amend directions to restrict the inquest funding is a clear “no”. The directions and authorisations that provide for inquest funding in certain circumstances can already be amended under existing powers, if we were so minded to do so—and I am certainly not. The pilot powers do not go further than this; they simply allow the powers to be used in a more limited way, to enable pilots to be conducted. Funding for inquests is already available on the exceptional basis, when certain criteria are met. I hope that in my brief remarks I have satisfied the noble Lord to some extent.
Amendment 191AD withdrawn.
Clause 133 agreed.
Clause 134 : Excluded services: help in connection with business matters
Amendments 191B to 191D not moved.
Clause 134 agreed.
Clause 135 agreed.
Clause 136 : Criminal Defence Service: enforcement of order to pay cost of representation
191DA: Clause 136, page 86, leave out lines 21 to 25
Again, the amendment has been put forward by Liberty, to which I am grateful for assistance. It would remove paragraphs (a) and (b) from new subsection (2A) of Section 17A of the Access to Justice Act 1999, which would allow regulations to be made to allow costs incurred in enforcing a contribution order to be made against the person against whom the order is sought, and would allow regulations to provide for the withdrawal of a person’s right to legal representation.
The change to the Access to Justice Act in Clause 136(3) would allow regulations to set out that the Legal Services Commission could not only recover the cost of the legal representation from a person so represented, but also the costs of trying to enforce an order to pay, which would necessarily include legal costs. This could quite conceivably mean that a person who has been given legal aid funding in a criminal matter but later required to pay for his or her legal representation is ordered to pay costs that could exceed the amount of the initial representation.
An order for the recovery of defence costs can be made against someone who is convicted of an offence in the Crown Court and higher courts and earns over £22,235, has capital of over £3,000 or has more than £100,000 equity in their home. These are not necessarily high-income earners or those with substantial assets. Allowing a requirement to be imposed to add on the costs of enforcing an order which may well exceed the amount of the order itself does not seem, in our view, to be fair or proportionate.
Paragraph (b) of new subsection (2A) of Section 17A of the Access to Justice Act would allow regulations to be made that could provide for the withdrawal of an individual’s right to representation in certain circumstances. Article 6 provides for the fundamental right to a fair trial and the right to free legal assistance in the interests of justice. The withdrawal of legal aid in criminal cases could breach the right to a fair trial. Failure to pay a costs order should not result in removal of representation, such as at any subsequent appeal. This matter should be left to secondary legislation, particularly in the light of the obligations under Article 6.
To assist the noble Lord, without making any promise to agree with him at a later stage, I am prepared to look at paragraph (b) of new subsection (2A) of Section 17A of the Access to Justice Act again. He has made the case, and it is worth looking at again.
I am grateful. I therefore turn to the two other amendments in this group. Amendments 191DB and 191DC would amend paragraphs 4 and 5 of Schedule 16 to ensure that enforcement must provide that, before a court makes a clamping order for a person’s motor vehicle, it must be satisfied that doing so would not cause substantial hardship to any person and that a motor vehicle is only owned by a person if he or she has a substantial interest in it.
The Bill introduces the ability for a court to make an order to sell a person’s motor vehicle in order to pay the costs of legal representation. We have particular concerns about the ability for such an order to be made for motor vehicles, particularly where the person about whom the order has been made only has an interest in the motor vehicle. This could clearly impact not only on the property rights of the person concerned but also any co-owner of the motor vehicle. No provision has been made to set out the rights of any co-owner to object to such an order being made or to recover their interest in the vehicle. We suggest that that breaches the right to property in the European convention. It also fails to deal with a situation where the making of a clamping order would give rise to extreme hardship if either the owner of the vehicle or any other person should lose his or her only means of livelihood, and should impact not only on them but also on dependent family members.
The courts should be able to refuse to make a clamping order if to do so would lead to substantial hardship, which should be left to the courts to determine on the facts of each case. An order should also not be made where the person in respect of whom the order is made only had a small interest in the motor vehicle. A substantial interest at least should be demonstrated. The rights of a co-owner ought to be considered by the courts in determining if substantial hardship would be suffered by any person. I beg to move.
The Government are committed to the principle that those who are convicted and can genuinely afford to pay towards their costs in criminal proceedings should do so. This underpinned the introduction of means-testing in the magistrates’ courts in 2006 and the recent consultation on extending it to the Crown Court, the pilots for which will begin early next year.
It is of course essential, if you are to have a scheme for means-testing under which certain defendants are required to pay towards the cost of their case from their disposable income, that such a scheme is backed up by an effective and efficient scheme for collecting and enforcing contributions. If it is not, people will not pay. The Government have a clear responsibility to make sure that the contributions are collected and we are proposing to take fast, effective and firm action to enforce payment.
Only those defendants with disposable income and/or capital assets above a generous threshold will be required to contribute to the costs of their defence—and, of course, only if they are found guilty. We estimate that three out of four defendants will continue to receive representation without having to contribute. The means-testing scheme includes a range of allowances based on actual expenditure, weighted to reflect individual circumstances. As a back-stop, there is a hardship appeal route for those who do not qualify. We are as confident as we can be at this stage that the new scheme will accurately and fairly identify those who can genuinely afford to pay.
As I say, appropriate sanctions must be an integral part of an effective enforcement system. There will be, in the nature of things, defendants who just wilfully fail to comply with contribution orders. The proposed power to add the cost of enforcement to a defendant’s outstanding liability, which the first part of Amendment 191DA would remove, will act as a deterrent and also ensure the cost-effectiveness of the scheme. It will be made clear at the earliest opportunity to those people who are liable for contributions that they will face additional costs based on any enforcement measures which become necessary. This is a necessary part of enforcement. I have already explained to the noble Lord that I will consider again the part of that amendment that applies to new subsection (2A)(b) in Clause 136(3)(b), about,
“the withdrawal of an individual’s right to representation in certain circumstances”.
We have been explicit throughout the consultation process that we do not intend to withdraw representation in response to non-payment of a contribution order. This is an essential part of the scheme we are setting up.
Amendment 191DB relates to the provisions for the making of motor vehicle orders contained within Schedule 16. It would insert,
“that making such an order would not cause substantial hardship to any person”.
We consider this addition to be unnecessary. The new means-testing scheme is itself designed to identify whether a defendant has sufficient disposable income and/or capital to contribute to some or all of his costs. If a defendant assessed as being liable for a contribution still feels that they just cannot afford it, they may apply to the hardship unit.
Clause 136 already makes it clear that applications for orders can be made to the court only in cases where a defendant has wilfully or culpably neglected to comply, and only at the end of the collection and enforcement process when other methods have failed. However, the real buck-stop is that orders can be made by the judiciary only when they are satisfied that they are appropriate and proportionate.
Any orders made under the new scheme will be subject to the same safeguards as the existing scheme for the enforcement of court fines. We are confident that this recovery process works well and has sufficient administrative and judicial safeguards.
Amendment 191DC would also amend Schedule 16, but, in this case, so that orders could be applied for only in relation to vehicles in which the defendant had “a substantial” interest. It is not clear how “a substantial” interest would be defined, and it is not the wording used in existing regulations for other enforcement schemes. However, the court would have to be satisfied, before it granted any order, that it was a proportionate and necessary step at the end of any enforcement process. In the light of that explanation, I hope that the noble Lord will not press his amendments.
Regulations will deal with the position of co-owners and are likely to follow existing provisions on control of goods of debtors that apply in the Tribunals, Courts and Enforcement Act 2007.
I shall watch the contribution orders as an interested observer. They have been tried previously in legal aid and failed, because it proved to be uneconomic for every person who appeared before the court to be required to fill out a form for their means to be assessed. The very fact that people’s means had to be assessed, and the whole business of recovery—as we have just heard—the taking of people to court and the removal of their cars, was an expensive process. It proved more economic in the end not to have contribution orders. Whether the Government have by their current legislation found a way of squaring the circle and making it economic to make contribution orders is something that I shall follow with considerable interest. For the moment, I beg leave to withdraw the amendment.
Amendment 191DA withdrawn.
Clause 136 agreed.
Schedule 16 : Motor Vehicle Orders
Amendments 191DB and 191DC not moved.
Amendment 191E had been withdrawn from the Marshalled List.
Schedule 16 agreed.
Clause 137 agreed.
Clause 138 : Exploitation proceeds order
Amendment 192 had been withdrawn from the Marshalled List.
Debate on whether Clause 138 should stand part of the Bill.
I and all those who have appended their names to this proposition wish to oppose not only this clause but all the clauses in Part 7. At Second Reading, which was some two months ago, I ventured to flag up my tentative view that I doubted the value and usefulness of the Government’s proposal to enable the courts to order an offender to pay amounts in respect of benefits received from the exploitation of material relating to his offence; for example, royalties obtained from a book or from a television interview about his crime. Support for my view at Second Reading was voiced by the noble Lord, Lord Lester of Herne Hill, and the noble Baroness, Lady Stern, both of whom are in their places today and expressed strong doubts about the proposed “exploitation proceeds orders”, as they are called in the Bill. I am delighted that they have joined in my proposition that Part 7 does not stand part of the Bill.
The noble Lord, Lord Henley, speaking from Her Majesty's Opposition Front Bench, was kind enough to say that I had probably got it right when I said that I had considerable doubts as to whether Part 7 was needed at all, because adequate remedies are already in place to deal with the public outrage that might arise from convicted criminals profiting from the proceeds of the publication of their memoirs. I cited the memoirs of Ian Brady, Mary Bell and Dennis Nilsen.
Subsequently, I received a letter from Dennis Nilsen, who has been in prison for 26 years so far out of his life tariff for multiple murders committed in the early 1980s. He told me that he had never received any payment directly or indirectly for any memoirs. He is, I believe, correct, and I repeat today the apology that I made to Dennis Nilsen by letter on 20 June. I accept that he has not profited from any memoirs; that does not mean that he has not tried to do so.
However, there are already in place prison rules to prevent the publication of memoirs while the author is in prison. These rules were applied to Nilsen and his solicitor when a considerable manuscript of, I think, some 70,000 words was produced. The legality of the prison rules in terms of the European Convention on Human Rights was challenged by Nilsen and his solicitor, and the Court of Appeal upheld in 2003 that the rules were not contrary to European Convention on Human Rights. In addition to the prison rules, which can stop publication of memoirs in the way that I have described, the Serious Organised Crime Agency may seek a confiscation order from the court when money has been obtained in connection with an offence.
Part 7 seeks to introduce a civil recovery scheme whereby the courts may order an offender to pay over amounts in respect of benefits derived from the exploitation of any accounts of their crime. I doubt that any of these provisions in Part 7 are worth while, and I can certainly see difficulties in their application. The Government say that changes are desirable to prevent further hurt and distress to victims and their families. Concern for victims is of course a theme running throughout this Bill, but the Government admit that nothing is to be recoverable by the victims—any moneys recovered would go to the Consolidated Fund—and that the provisions will be usable in only a very few cases.
In a letter sent to me on 14 June and, I think, copied to other noble Lords and placed in the Library of the House, the Minister has explained that an exploitation proceeds order can be made only by way of application to the High Court and that the court will have wide discretion—that is, of course, very helpful practical protection for the respondent; namely, the author of the memoirs. However, the Government also emphasise the expected rarity of the orders.
I would further argue that the publication of a criminal’s memoirs may in some cases have beneficial outcomes in terms of the rehabilitation of the offender, just as learning new technical or language skills or discovering one’s artistic talent may assist in the rehabilitation of a prisoner.
Let us recollect prison diaries by sometime parliamentarians. I do not know what your Lordships’ taste in books runs to, but it may run to the quasi-confessional thoughts of former Member of Parliament Jonathan Aitken. It may run to the detailed experiences of prison life of our fellow Member, the noble Lord, Lord Archer of Weston-super-Mare. I doubt that the possibility of public outrage justifies further restrictions on the freedom of expression of an offender, whoever he or she may be.
I have already made the points that there are restrictions under the Prison Rules, and that the confiscation provisions of the Proceeds of Crime Act 2002 can be used to recover any excessive royalties that one may come across in an occasional case where it is desirable for confiscation to take place. The Minister tells me that the application of the confiscation provisions of the 2002 Act is “far from certain”. While confiscation orders would normally be obtained at the point of conviction, a publication about a crime may not be written until many years after the event. The Minister does not say that confiscation orders under the 2002 Act cannot be obtained later than the date of conviction, though no doubt concern about outrage to the victims may reduce over time and reduce justification for any court to make such an order. I accept that the application of the confiscation provisions in the 2002 Act is uncertain but so would be the application of the present proposals in Part 7 of the Bill. Anybody who glances at Clause 145, which is filled with all kinds of limitations and restrictions, will see how unlikely and rare it will be for the court to make orders under the current Bill.
Your Lordships will know that the Joint Committee on Human Rights is concerned that an exploitation of proceeds order is in part dependent on the degree to which victims, victims’ families and the general public are offended. Your Lordships will know from Clause 145(3)(f) that that is so. The court would have to go into the extent to which it thinks that the memoirs would offend the victims, the victims’ families or the public in general. As the noble Baroness, Lady Stern, said at Second Reading—as, I think, did the Joint Committee on Human Rights—that leaves a great deal of uncertainty. I think all the clauses in Part 7 should be removed. They do not do justice to the Government’s desire to assist victims or deal with the public outrage that there may be. Provisions exist—especially the prison rules—that stopped the publication of the Nilsen memoirs. There are existing provisions which are sufficient and adequate, without having another 11 clauses added to the Bill, which your Lordships may think is already long enough.
I am delighted to add my name to that of the noble Lord, Lord Borrie, in opposing Clause 138. I will supplement what he has said without repeating it because I entirely agree with everything that he has said. I should declare some interests. I was amicus curiae in the Blake case, which seized the profits of his memoirs in the Court of Appeal. I am on the Joint Committee on Human Rights and I am a vice-president of English PEN. I do not know whether your Lordships will have seen a letter in today’s Guardian from Lisa Appignanesi, the president of English PEN; Frances Crook, the director of the Howard League for Penal Reform; Pat Jones, the director of the Prisoners’ Education Trust; and Rachel Billington of Inside Time magazine, the national newspaper for prisoners. Since they are potentially on the receiving end as people concerned with publications and free speech, it is right to tell your Lordships something of what they have said. They write:
“The law would apply to all mediums of expression, including any visual art, poetry and fiction created by former prisoners about their crimes. It would also apply to offences committed overseas. The title ‘Criminal Memoirs’ implies a narrow focus which is entirely misleading.
Additionally, the considerations that allow for a seizure application to be made are far too broad. One criterion is the extent to which the public is ‘offended’ by the payments. Such subjective criteria make for bad law that is open to abuse. Genuine attempts at rehabilitation become vulnerable to populist campaigns.
The Government assures us that the new Exploitation Proceeds Orders will be used sparingly, but the broad criteria outlined in the Bill lead us to fear otherwise. We are conscious of how Terrorism Laws have been misused in recent years, and we are deeply concerned that the new seizure orders will enable similar over-reach.
The Government did not consult widely enough on this issue. The proposals as they stand place countless rehabilitation charities in an uncertain position. We urge Ministers and Parliamentarians to revisit Part 7 … in dialogue with those groups that share the Government’s over-riding commitment to prisoner rehabilitation and integration”.
I am delighted to see the noble Lord, Lord Ress-Mogg, in his place, because I think he—probably alone in the Committee, as a distinguished former newspaper editor and book collector—will reflect as we debate this on whether it is sensible to have 14 pages of the Bill devoted to this issue.
I turn next to what the Explanatory Notes say about the European Convention on Human Rights because I have the misfortune to disagree with how they are expressed. I am looking at pages 156 and 157. Paragraph 950 states:
“It is arguable that Article 10”—
the free speech guarantee—
“could be engaged because the scheme might deter people from writing or speaking … about their offences, thus limiting that person’s freedom to impart information and the rights of others to receive it. If Article 10 is engaged, the Government considers that any interference is justified. Article 10 is a qualified right and may be subject to restrictions that are prescribed by law and necessary in a democratic society in pursuance of a legitimate aim”.
Paragraph 951 then refers to meeting,
“the pressing social need to allay public concern about criminals profiting from their criminal behaviour”.
It also states that the Bill is,
“necessary … and proportionate in doing so”.
The Explanatory Notes conclude in paragraph 953 that the provisions are “consistent with Convention rights”.
Without boring the Committee with a lot of detail, it is perfectly clear that the provisions engage free speech. There is not the slightest doubt about that. Indeed, there is much case law on the taxing of free speech—the imposing of limits by way of costs on free speech or depriving the author of a means of exercising free speech. There are many different ways in which interference with free speech must be justified. When the Explanatory Notes suggest that it is an open question, it is not. There is no doubt whatever that these provisions implicate free speech directly. It is true that they do not ban publications in advance. That is the worst form of interference because it involves censorship. However, they deprive the author or publisher of the financial means or the profits that come from it, so free speech is undoubtedly implicated.
It is absolutely clear in the case law of the European Court and of our own courts that the right to free speech may be exercised even where the speech shocks or offends a section of the public. We all understand perfectly well that reading a gloating memoir about a heinous crime would cause huge distress to the victim or his or her family. We are not at all insensitive to the hurt that can cause, but this Bill does not deal with that narrow problem of hurt. It covers prisoners in this country, former prisoners and an enormously wide range of expressions.
Last evening I had the pleasure of entertaining eight members of a remarkable British Asian family, the Sen Gupta family. I explained what we are debating today and all of them—they comprised very intelligent people such as lawyers and doctors—said that it was ludicrous to imagine that they would be offended by reading criminal memoirs. One of them referred to Shantaram by the Australian author, Gregory David Roberts, in which he reflects on serious criminality. One lady said that reading that book had been of enormous benefit in enabling her to understand why crimes are committed and how criminals may be rehabilitated. Therefore, I am very sorry to say that I do not think this measure is in any way a proportionate response to a pressing social need.
The impact assessment of the proposal indicates that no more than two cases a year will come to court at an average annual cost of £370,000. Introducing a measure with such a potential chilling effect on free speech for such a small number of cases is a prime example of taking a sledgehammer to crack a nut. In their responses to the consultation, media groups and the Criminal Bar Association considered that the few instances of profit-making by offenders was not sufficient to warrant legislation and that self-regulation was already sufficient. Media groups argued that the small number of cases of criminals profiting from their crimes did not justify taking any action. The Newspaper Publishers Association noted that the industry’s self-regulation system already imposed strict prohibitions on payment to criminals. The Association of District Judges thought that the proposed scheme was unworkable in practice and that the costs associated with recovery would be out of all proportion to the amount received.
As has already been said by the noble Lord, Lord Borrie, the proceeds do not even go to the victims but to the state. Therefore, we very much hope that the Minister will indicate that the Government will reflect on this more deeply. I shall listen with particular interest and pleasure to what is said from the opposition Benches because the dilemma raised by provisions of this kind is that if politicians appear to oppose them they will be accused of being soft on crime or soft on criminals. However, I have faith in the Conservative Party as a party that believes in free speech. I look at the noble Lord, Lord Hunt of Wirral. He and I have been allies on many free speech issues in this House. Therefore, I very much hope that our combined forces may lead the Government to think again.
I am grateful to the noble Lords, Lord Borrie and Lord Lester. I am also grateful to the noble Lord, Lord Borrie, for going ahead with what he threatened to do at Second Reading; namely, to suggest that this clause should not stand part.
I began the day by reading through from Clause 138 to Clause 155, which is 14 pages of new, detailed law. I asked myself in what way it would make society better, safer or more just. It has already been made clear that the likely outcome is two actions per year, but, of course, the outcome is much wider than that because it will have a hugely dampening effect on potential writers, filmmakers and communicators who have a criminal conviction. I should be very grateful if the Minister could confirm that I have understood correctly that this applies to anyone with a conviction above a conditional discharge and not just to someone who has served a prison sentence. I hope that I have understood that correctly but I look forward to the Minister correcting me if I have not.
With these 14 pages of law, the potential writer or filmmaker enters a Kafkaesque world of doubt as they might be affected by these provisions but it will be decided on the balance of probabilities. They might be affected if they benefit from any steps taken, or to be taken. It is not clear to me how they can benefit before they have taken the steps but are perhaps just thinking about them. A person reading the measure will face difficulties in deciding whether they will contravene the law. If they are paid a fee for meeting someone to discuss a programme that is never made, does this mean that they have started taking steps? Then they have to reflect on the question of who is being offended. Which members of the general public will be offended? Eventually, the court—if the matter comes to court—must take account of the social, cultural or educational value of what has been done. So the potential writer or filmmaker has an awful lot of thinking to do before deciding to embark on writing related to the events of their past life. What happens if the victim is delighted that the offender who committed a crime against that victim has become a writer? Suppose there is a very happy victim but a very unhappy general public, who will win out?
I should declare an interest as a senior research fellow at the International Centre for Prison Studies at King’s College, London, which researches prisons, their nature, function and role in society. Books written by people who have been in prison constitute a huge and indispensable body of literature. On a very superficial check of my bookshelves, I noticed the following books. In 1985, Audrey Peckham wrote A Woman in Custody. She was a deputy headmistress who had a nervous breakdown and her actions led her to be convicted for incitement to murder. The book gave an insight into life in women’s prisons that changed the debate and energised the reform movement. The Bird that Never Flew by Johnny Steele is described as the uncompromising autobiography of one of the most punished prisoners in the history of the penal system. It was published in 1992. This autobiography shows how a terrible childhood leads to crime, and how the system fails at every turn to take the right measures to change the person and divert them from crime, and is just as relevant today. Could he have written this book and left out the details of the crimes he committed? I do not think so.
Some noble Lords may remember Inside: One Man’s Experience of Prison by John Hoskison, published in 1994. He was a professional golfer who hit and killed a cyclist while driving home, having had too much to drink. His book was a revelation of how prison seemed to someone with no experience of that world. The book was widely read and widely used as a contribution to the prison debate.
Finally, I want to mention John Williams’ Silver Threads published in 1994 by BBC Books. One has to ask whether BBC Books, when confronted with such a project would have to go through 14 pages of law and hire expensive lawyers before deciding whether it would be possible to proceed. That book begins:
“In the winter of 1948 I committed the offence of being born. Three months later I was handed into the care of Dr Barnardo’s Village homes in Barkingside”.
That was an extraordinarily good, moving book from which there was much to learn for childcare specialists, psychiatrists and all the professionals.
As noble Lords have said, there may be exceptional cases where the Proceeds of Crime Act might be used, where it can be established that there is no rehabilitative, artistic, educational or cultural merit—whatever artistic product it is—and it is gratuitously exploitative. But that would be very rare. It is overwhelmingly in the public interest and, therefore, in the interests of all victims of crime, that people with convictions should be able to write and create for their benefit and rehabilitation, and for the benefit of all those who want to learn and understand. I sincerely hope that the Government will have second thoughts about these clauses.
I should like to take up the very kind invitation of the noble Lord, Lord Lester, to join in this debate, purely from the point of view of someone with experience in newspapers. I also associate myself with the arguments put very clearly by the noble Lords, Lord Borrie and Lord Lester.
From the newspaper point of view, this is a largely obsolete problem. Newspapers do not publish the memoirs of criminals to anything like the same extent that they used to. We are talking about something that might well have been regarded as a serious issue in the early years of the previous century, when payment by a newspaper was an entirely normal way of securing sufficient funds to provide a satisfactory defence for sensational criminals. That issue arose in the Crippen case, although it appears from a report by Scotland Yard’s Black Museum that Crippen may have been wrongly convicted, despite the efforts of his counsel, as the remains that were discovered on which the allegation of murder was based could not have been those of his wife, because they were those of a man.
However there were undoubtedly cases, which one associates with that celebrated counsel, Marshall-Hall, in which very large sums of money were paid by popular newspapers which went to providing satisfactory defences—which were, as regards Marshall-Hall, in some cases unexpectedly successful. I do not think that that problem really exists now. For one, there is legal aid, which means that murderers are defended anyway, and adequate or appropriate payment is made. The newspapers themselves disapprove of publishing memoirs of criminals as a practice and have largely given up trying to take advantage of even very sensational memoirs.
The clauses which we are discussing fall on the grounds that they are not necessary and that they interfere with normal and proper freedom of speech, which has often, in the case of criminal memoirs, made important points—as the noble Baroness, Lady Stern, pointed out—which have helped in the study of criminology.
I am very glad to follow the noble Lord, Lord Rees-Mogg, for what he said must have done much to allay the sorts of concerns that lay behind the drafting of these provisions when they were first incorporated in the Bill. I apologise for missing the opening remarks of the noble Lord, Lord Borrie, but I think that I got the gist of what he was saying.
We all agree that there is much too much legislation, particularly in the criminal field. This point has been made over and over again by successive Lord Chief Justices, and yet Governments of both sides fail to pay attention to what they say. Blackstone’s, the criminal justice book which I read, gets bigger every year, and soon will become completely unmanageable. This particular part of the Bill seems to be a very good example of legislation which might have a certain attraction—or might have had a certain attraction some years ago, if the noble Lord, Lord Rees-Mogg, is right—but by no stretch of the imagination could the proposals be described as necessary.
I had grave doubts when we in this House were asked to consider the Proceeds of Crime Bill—but we did and we passed it. I have much graver doubts about the provisions of this Bill, because they are that much further removed from the crime itself. Yes, there is a problem, but it seems to me to be a tiny problem—a nut which is being cracked by this massive new piece of legislation. This is just the sort of legislation which we ought not to have now as a matter of principle. I give what support I can to the noble Lord, Lord Borrie.
I speak in opposition to these clauses. I am very grateful to noble Lords who have spoken and have covered a whole range of issues and problems with the clauses. I fully support their concerns and I do not intend to repeat them.
I want to look at this issue from the point of view of what actually constitutes a memoir, and the difficulties and problems involved in assessing what that might be. I come to this from a position of knowing a great deal of work that goes on in prisons and in the criminal justice system in general with regard to arts works, which cover a whole range of activities. Does “memoir” cover dramatising lives through playwriting, screenplays, choreography, visual arts, television or literature? There are many ways of approaching the question of how you address what you have done in your life.
The Explanatory Notes suggest that exploitation covers a whole range of forms. They state that,
“exploitation can be by any means including publishing material in written or electronic form, using any media from which visual images, words or sounds can be produced and live entertainment, representation”—
I am not quite sure what that means—
I should say, given my experience as an academic who has spent a long time analysing media and cultural texts, that it is very possible to disguise or smuggle in, as it were, the details of one’s autobiography relating to a particular crime through a large number of methodologies or means—it could be through metaphor, analogy, satire or using animation. Are all of those areas covered? That also begs the question of the extent to which people will be available, able to analyse and to assess the cultural and education value of such work. Does it have less educational and cultural value because the work is done very simply in a particular form, or uses a lot of expletives? Does it mean more because it is written a particular style? Would that mean that “cleverer” prisoners would be deemed to have produced a work that is of more value than others? That area is highly problematic; any act of memoir is a creative act—it is not simply putting down facts.
The act of creative expression is located in its capacity to be interpreted. That brings with it a range of problems about who it will offend, and who will find it obnoxious and upsetting. A range of people can write about the most horrendous crimes in any form they want, which could be equally upsetting for those who have been affected by those horrible acts.
Finally, there is plenty of evidence that engaging in creative activities in prison helps prisoners to rehabilitate, because it encourages them to explore the self and reflect on their past, and challenges unacceptable anti-social behaviour. If that is stopped or deemed not to be a viable thing to do on the way to earning legitimate money, it would be very difficult. That is why I oppose the clause.
At Second Reading, I reserved the position of these Benches in order to see whether the clauses were justified. Since Second Reading, I have done my own research, and we have heard some very powerful speeches today about why the clauses are not justified or necessary and why they will have not only the chilling effect on free speech that we heard about from the noble Lord, Lord Borrie, supported by quotations from the Publishers Association and others, but also the chilling effect on the rehabilitative possibilities mentioned by the noble Baroness, Lady Stern. When the reasons are combined there is no doubt that the Government cannot justify including the clauses in the Bill.
Since Second Reading, there have been interesting examples of things that might have been caught by the Bill. I will give one example, which took place between 23 and 27 June 2009. I refer to the Freedom Project from the Only Connect theatre company. The actors are ex-prisoners who are paid—not much, but roughly Equity rates. They develop a short play about the lives that they lead. It may surprise noble Lords that the Daily Mail went along to the same project that was put on last year—I am not aware of this year’s review—and gave it a glowing review. The paper clearly saw it as a very worthwhile venture. The clauses, as other noble Lords have pointed out, refer to any material. The fact that they are headed “Criminal memoirs etc” does not mean that these plays—or even art—would not have been caught. Almost anything within the sphere of the arts could be caught.
The statistics on education in prison are disheartening. The Minister himself has often pointed to the fact that the education of prisoners is a key objective. Therefore, I impress upon him the quotation from Tim Robertson, chief executive of the Koestler Trust, who does work in this area that is of particular value to prisoners. He says, in Brain Cells: Listening to Prisoner Learners, that,
“for me the most heartening figure in this report (though of course I’d like it to be even higher) is that 64% of respondents have access to arts facilities. Because the arts—along with many academic subjects—are exploratory. The arts recognise human complexity, and encourage a creative and carefully shaped response. And I believe this is a form of learning which—much more than the acquisition of facts and skills—will equip prisoners for the wide-ranging, ever-changing social and economic demands of our own hard times”.
As this comes from somebody with his understanding, and given also the very powerful speeches this afternoon from noble Lords who know so much about the issues, I hope that the Minister will think again about the clauses and withdraw them from the Bill.
We are all very grateful to the noble Lord, Lord Borrie, for initiating this important debate. First, I declare my interest, as set out in the Register, and in particular as a partner in Beachcroft LLP and a practising solicitor.
I completely agree with the response of my noble friend Lord Henley, who said:
“It was the noble Lord, Lord Borrie, though, who probably got it right when he said he had considerable doubts as to whether it was needed at all”.—[Official Report, 18 May 2009; col. 1295.]
We all then awaited the response of the noble Lord, Lord Bach, who summed up that debate. He did not answer any of the questions that noble Lords had raised, but merely said:
“We heard some interesting speeches on criminal memoirs. I think there will be interesting debates on that, too”.—[Official Report, 18 May 2009; col. 1301.]
He will not have been disappointed by this debate. On that occasion he relied on the fact that the courts would have,
“a wide discretion on whether to impose an order”.—[Official Report, 18 May 2009; col. 1302.]
That is a pretty threadbare defence, and we need to hear much more.
I am very grateful to the noble Lord, Lord Lester, who made some extremely important points, as did the noble Baroness, Lady Stern, who said that the clause would have a hugely dampening effect and also create uncertainty. These questions must be answered. The noble Lord, Lord Rees-Mogg, gave us the historical context and said—I respect his views—that it is a largely obsolete problem and that the clause is unnecessary and would interfere with freedom of speech. All these are relevant points.
The noble and learned Lord, Lord Lloyd of Berwick, expressed the view that we have shared on many occasions that there is too much legislation. The noble Baroness, Lady Young of Hornsey, stressed that we all find it difficult to balance creative expression against heinous crimes and asked what conclusion we should reach. The noble Baroness, Lady Miller of Chilthorne Domer, spoke for all noble Lords who have contributed to the debate when she said that this would have a chilling effect. That is what worries many people, so it is important that I set out the views of these Benches.
They are, first, that people who commit heinous crimes should not benefit financially from them after their release—or even, as sometimes happens, while they are still in prison. However, consistent with that view, we in this House must do everything possible to produce legislation that is effective and workable. As the noble and learned Lord, Lord Lloyd of Berwick, pointed out, we have so much evidence from history that, where complex legislation is concerned, good intentions are not enough. While our stomachs may churn at the thought of villains parading around making profits from accounts of their misdeeds, we must ensure that, as the noble Lord, Lord Lester, pointed out, the legislation is proportionate, clear and workable. We must also enshrine a belief in the possibility of sincere redemption and rehabilitation. That is why it is so important that the legislation does not gag anyone.
The great impresario, PT Barnum, once famously observed that no one went broke underestimating public taste. Dismaying though we may find that fact, there is a certain public appetite for the kind of material that we are discussing. None the less, this Government have a certain penchant for banning things and the burden of proof must always be firmly on those who seek the ban. Simply finding something distasteful is not reason enough to ban it.
Of course, as the noble Lord pointed out, we are walking in a legal minefield. To the left of us is the Government’s Human Rights Act and to the right of us is our consideration of restraint of trade and so on. Presumably as a consequence of that dangerous landscape, the legislation before us proposes to give the courts considerable flexibility. That was the defence of the noble Lord, Lord Bach, in summing up the debate. A later group of amendments seeks to bring additional flexibility and clarity. Indeed, if the Minister says that he will carefully consider all these points and think again, it may not be necessary to move the amendments.
Of course, this is not the first occasion since 1997 when the House has had to weigh its long-standing belief in freedom of speech against other public interest considerations. Famously, I recall that in combination with the noble Lord and other noble Lords, we significantly watered down the Government’s Racial and Religious Hatred Bill. More recently we have also supported my noble friend Lord Waddington in his amendment to the Coroners and Justice Bill. Our intention, our probing amendments and the points we are making are all designed to ensure that the Government’s plans are workable. We know that doubts have been raised about the viability of the proposals—they were set out in the letter in this morning's Guardian quoted by the noble Lord—but at present we would not support the removal of these clauses from the Bill. We are content with the principle but we will want to examine our view carefully in response to what the Minister says in reply to this debate. Of course, we shall consider his comments and reflect over the summer and I am sure that we shall return to this matter on Report.
I want to work through one or two of the comments made by Members of the Committee and then offer an overview which will allow noble Lords to study the Government’s position carefully over the summer. Essentially, my noble friend Lord Borrie encapsulated what we went on to discuss more widely. His first point, which is significant, was whether this legislation is worth while. Clearly, the Government judge that it is worth while as they have put some considerable efforts into it. It has gone through a significant consultation on which I shall touch later and they have crafted this part of the Bill to address what they think is a problem.
The Bill has gone through the other place and received support from all parties. On 10 March 2009, Henry Bellingham said:
“We have supported the Government’s policy of including part 7 on criminal memoirs in the Bill and have taken the view for some time that people who commit heinous crimes should not benefit financially from them after their release or, as in some cases, while they are in prison”.
David Howarth, for the Liberal Democrats, said:
“Like the hon. Gentleman, I have no objection to the general principle—indeed, I support it—that people should not benefit from their own wrong. Civil remedies in this area”—
the word “civil” is important—
“are more difficult to obtain than and are not as extensive as some academic commentators would have us believe … On the general point, there is rightly very little sympathy for a criminal’s right to express themselves and”—
this is the key word—
“gain from writing about or exploiting their criminal career”.
Edward Garnier said:
“I may have misunderstood the hon. Gentleman’s point”—
that is David Howarth’s point—
“and the clause under discussion, but the contents of clause 140 may be of use to him. As I understand it, clauses 133 confiscates the profit, but it does not prevent the publication”.—[Official Report, Commons, Coroners and Justice Bill Committee, 10/3/09; col. 680.]
My noble friend Lord Borrie and others made the general point about whether it is worth while. We think it is worth while and we think that those in the other place felt it was worth while. My noble friend then moved on to the point which has been raised by a number of noble Lords. I refer to freedom of speech. At one level, freedom of speech is not directly addressed and it is certainly not addressed in a criminal way. This is a civil part of the Bill. It would be enacted under the civil law. The view has been expressed that if you somehow tax speech, you are limiting it. I accept that that is a respectable point of view, although it is but part of the freedom of speech concept. I shall turn to that in a moment.
On behalf of the Government, does the Minister accept that imposing financial burdens of any kind on would-be publishers would constitute interference with free speech? That is elementarily the case and has been decided by several supreme courts and by the European Court of Human Rights. Is that accepted? I suggest that that is plainly obvious.
What I shall say in a moment will express the Government’s position on that point. I had allowed for the fact that if there is a tax on speech, that may indicate, in part, some limitation on freedom.
The noble Lord, Lord Lester, went on to cover the issue about the criteria, as used in the Guardian letter. In particular I think he was alighting on, and the Guardian letter alights on, the final criteria that are in Clause 145(3)(f). It is very important in my view to look at Clause 145(2) and (3) because they detail the breadth of considerations to which a court has to have regard. Paragraph (f) is but one of those considerations.
The essence of the Guardian letter seems to be that we should have consulted more. We disagree. The consultation paper, Making Sure that Crime Doesn’t Pay, was published jointly by the Home Office, the Scottish Executive and the Northern Ireland Office in November 2006. The consultation ran for three months until 9 February 2007. It was published on the Home Office, Scottish Executive and Northern Ireland Office websites where readers could post comments. It was also sent directly to a number of organisations that were thought likely to have a specific interest in this issue. The full list of organisations we have consulted is set out in Appendix 1 on page 31 of the consultation document. Around 60 organisations in England and Wales, around 70 in Scotland and around 30 in Northern Ireland were sent a copy of the consultation paper. The Howard League for Penal Reform and the Prison Reform Trust were included in the mailing list. Inside Time magazine and English PEN were not sent copies but a number of publishing and newspaper groups were. It was open for anyone to view the consultation document on the website. Our response to the consultation was published in December 2008 and we received a total of 24 responses. Responses were received from victims’ groups, broadcasters, press and publishing organisations, members of the judiciary, police groups and members of the public. We therefore do not accept that the consultation exercise was too narrow.
Turning to the freedom of speech point—
Before the Minister leaves the subject of the consultation, does he agree that the Publishers Association stated in its response that the plans were,
“disproportionate, impractical, unnecessary and would set a highly dangerous precedent for state control of publishing, putting at risk the UK’s enviable and hard-won freedom of speech”?
Does the Minister further agree that the chief executive of the PA stated:
“The second point is that some of the most potentially offensive stuff wouldn't come from people convicted of something. For example, Nelson Mandela couldn't publish stuff because he was convicted of a crime, but OJ Simpson could, because he wasn't”?
Does the Minister accept that the Publishers Association made strong representations and a number of salient points?
Of course I accept that the Publishers Association made strong representation, and I in no way suggested that consultation uniformly agreed with the Government—it did not. From a quick review of the consultation, I think that it was roughly down the middle. Not unsurprisingly, publishing organisations broadly said that they did not like it; and, not unsurprisingly—this is an extremely important point—victims’ organisations looked on it as essential. Any consultation is about a balance. Any Government are charged with taking that balance of view when they bring law forward. As I have said, we believe that this is a worthwhile piece of legislation.
Moving to the freedom of speech point, the noble Lord, Lord Lester, cited the notes to the Act. We recognise that Article 10 could be engaged, but we also note—and I thank him for citing it—that:
“Article 10 is a qualified right and may be subject to restrictions that are prescribed by law and necessary in a democratic society in pursuance of a legitimate aim … These proposals will be prescribed by law with precision in primary legislation”.
The Minister has just said “will be prescribed by law in legislation”. Clause 145 sets out a number of factors so vague that they completely lack legal certainty, as the noble Lord, Lord Hunt of Wirral, said. It is impossible to imagine the public or a judge being able to balance those factors in a way that satisfies legal certainty. What is being put to the Minister is that there are twin vices. One is that it is too vague. Another is that it sweeps too broadly. Those are the issues that we are all asking the Minister to respond to.
As noble Lords will know, the JCHR produced a recommendation on criminal memoirs. It goes to the issue concerned in paragraph (f), and stated:
“We remain concerned that making an Exploitation Proceeds Order (EPO) in part dependent on the degree to which a victim, their family or the general public are offended in a particular case could unnecessarily risk arbitrary application of these proposals. We recommend that the Government should consider an amendment to the Bill to remove any reference to the degree of offence aroused by the relevant profits, while retaining the ability of the court to consider the wider public interest”.
I can do no more than quote the Government’s response:
“The inclusion in those factors of ‘the extent to which any victim of the offence, the family of the victim or the general public is offended by the respondent obtaining exploitation proceeds from the relevant offence’ does not, in the Government's view, mean that the scope of the court's discretion and the manner of its exercise is rendered insufficiently clear to give adequate protection against arbitrary interference. Indeed, given the highly detailed nature of the statutory scheme, the Government believes that the provisions in the Bill provide a very high level of protection against arbitrary application.
For these reasons, the Government is not currently persuaded of the case for amending the scheme in the way the Committee suggests”.
I am not a lawyer, and I am certainly not a judge, but in Clause 145(3)—this goes to the generality of the scheme—not only is there paragraph (f), about which there is concern, but there is paragraph (c), which states,
“the extent to which the carrying out of the activity or supplying of the product is in the public interest”,
so there is a public interest defence. There is paragraph (d),
“the social, cultural or educational value of the activity or product”,
and paragraph (e),
“the seriousness of the relevant offence to which the activity or product relates”.
I have faith—perhaps greater faith than the noble Lord—that judges will be able to interpret that in a balanced way to ensure that the Bill is appropriately applied.
I think that I have covered most of the concerns of the noble Baroness, Lady Stern, but I have to admit that I believe that any offence is covered by the provision. I may have to write to her to be slightly more specific, but the protection against the trivial offence is in the generality of the clause and the surrounding clauses. The noble Lord, Lord Rees-Mogg, said that this problem is largely obsolete. That is good—I am delighted—but it is not obsolete sufficient to the point where we do not believe that the general public and victims are concerned about it. The newspapers may not do it now, but there is still a wide variety of publications. The noble Baroness, Lady Young, asked whether “memoirs” mean just memoirs. No, it means all the means of distribution set out in the Bill. We recognise that newspapers may have cleaned up their act, but we also recognise that victims groups and their representatives have been very concerned that this should be brought under control. That is why we have brought the legislation forward.
Finally, in a sense, I welcome the contribution of the noble Lord, Lord Hunt. I think that his colleague in another place said that people committing heinous crimes should not benefit. We think that that covers the generality, but we pick out the “serious” provision as the way that the court will protect that.
If I may, I shall try to sum up the Government's general case on the clauses.
As the Minister is coming to his summing up, perhaps I could make one last attempt to explain. If he looks at Clause 145, he will see a list of factors that are not given any weight one against another. Let us ask the practical question. Suppose that it was the book A Sense of Freedom by Jimmy Boyle, my former client, convicted of serious murder, who spent 16 years in prison. Look at those factors. If you are the judge, you have to decide on paragraphs (a) to (f). That is an impossible task for a judge to perform without detailed evidence. It becomes a complete disaster. It is not capable of reasonable legal certainty in application. That is the point on legal certainty.
I note what the noble Lord says. From my amateur position, I obviously have a higher view of the ability of judges to apply their discretion in the case. As I said, this is a piece of civil law. It is very important to remember that there is no penalty here; there is a withdrawing of profit. This is not a criminal offence; it is merely a system to recover the profits that the criminal has made from publication. As the noble Lord, Lord Hunt, pointed out, he and his party have tabled a number of amendments, to which I will respond in due course. We think that this is a balanced way to do that.
If I range through the issues once more, I may cover the points that noble Lords wish to raise.
Part 7 introduces a new civil scheme, through which courts can order a qualifying offender to repay any benefit derived from exploiting material pertaining to a relevant crime. We believe that it is wrong for a criminal to cash in by exploiting the story of his crime, especially in cases where the offence has already inflicted immense suffering on victims and their families.
Currently there is no effective mechanism through which criminals’ profits from accounts of their crimes can be recovered. Allowing this situation to continue unchecked encourages the glorification of crime and perpetuates the notion that profiting from crime is acceptable. It does nothing to mitigate the pain and distress that such exploitation can cause to victims or their families or alleviate legitimate public concern about such profiting.
This is not a form of censorship. The scheme does not prevent anyone writing about his crimes, however distasteful that may be. The mischief that the scheme addresses is criminals cashing in on their stories. The scheme can be invoked only where an application is made to the High Court by the enforcement authority. Whether an application will be made in a particular case will be at the discretion of the enforcement authority and with the consent of the Attorney-General, or the Advocate-General in Northern Ireland, who will act in the public interest.
Where an application for an order is made, the criteria for the scheme are clear. The High Court will be able to order a criminal to repay only proceeds derived from exploiting material pertaining to an offence. These are, of course, the accounts that can cause the greatest distress to victims and their families. Publications about an offender’s life in prison or the steps he has taken to rehabilitate himself are unlikely to fall within the scope of the scheme, unless they include specific details about the commission of an offence.
Even where the criteria for the scheme are met, it does not automatically follow that an order will be made. The court will have a wide discretion in deciding whether to make an order and in setting the amount that the offender has to repay. In exercising that discretion, the court will be required to consider a number of factors before deciding whether to impose an order and, if it does so, the amount. These include whether details about the offence are central or integral to the publication as a whole; the social, cultural or educational value of the publication; the extent to which the material is in the public interest; and the degree to which the publication causes offence to victims, their families or the general public.
I am aware that my noble friend Lord Borrie has stated that these provisions are neither worth while nor desirable, a view supported by the noble Lord, Lord Lester, and the noble Baroness, Lady Stern. My noble friend’s contention is based on the fact that the scheme will be invoked only a couple of times each year and that the prison rules and existing legislation on confiscation of the proceeds of crime already prevent criminals benefiting from the publication of memoirs.
Let me turn to each of my noble friend’s points in turn. It is true that we anticipate that the scheme will be invoked only a couple of times each year. This projection is based on the number of cases that have caused concern over the past few years, but just because the scheme will rarely be used does not mean that we should turn a blind eye to this problem.
I cannot accept that we should send a message—
I apologise for interrupting the Minister, but I am sure it would help the Committee if he could write to us between now and Report with a list of those cases that have caused concern in the past 10 years. I would find that very helpful.
I will be delighted to do that.
As one of the victims’ charities pointed out in response to our consultation on making sure that crime does not pay, any financial loss to criminals as a result of our measures will be minimal compared with the terrible damage to the health and future happiness of grieving families should the practice of profiting from crime be allowed to continue. It is worth pointing out that both the main opposition parties in the other place were broadly supportive of our proposals.
I turn to what the noble Lord said about the prison rules and existing legislation. He is, of course, right to say there are already some measures in place that may, in certain circumstances, prevent criminals exploiting their crimes for gain. The prison rules govern what prisoners can publish or send to the outside world in correspondence. The Press Complaints Commission’s code of practice provides that payment for stories that seek to exploit a particular crime must not be made unless publication is in the public interest. A similar provision is contained in the Ofcom programme code, which sets out rules and guidance with which broadcasters must comply. History shows that these safeguards cannot fully address the problem; prison rules are effective only while an offender is in prison, and the influence of the Press Complaints Commission and Ofcom does not extend to other forms of media.
As far as the law is concerned, there is little that applies directly to the publication of material by criminals about their crimes. Confiscation laws have been used on only one occasion: the Randle and Pottle case in the late 1980s. The law has been updated since then and confiscation is now covered by the Proceeds of Crime Act 2002. The simple reality is that dealing with publications about crime is not what the confiscation provisions in Part 2 of that Act are designed to do. Their application in circumstances such as these is far from certain. The legislation is generic and bears only incidentally on accounts of crime. In addition, and importantly, confiscation orders are obtained at the point of conviction, whereas a publication about a crime may not be written until many years after the event. In a similar vein, civil law provides little opportunity to address the problem of profits from accounts of crimes.
In summary, we do not agree that existing laws are adequate to deal with the problem of criminals profiting from accounts of their crimes. Our scheme will remove the legal difficulties and uncertainties that I have highlighted and ensure that the High Court has the power to act, on application from a relevant enforcement authority, when an offender exploits material pertaining to the commission of an offence. I urge the Committee to remain focused on the overall aim, which is to—
I think it would be of great assistance to the Committee if the Minister could indicate whether, in view of the force of the arguments that have been adduced on all sides, which he has carefully heard, he and his ministerial colleagues will reflect carefully on all these points during the vacation, for which we are rising later today. In that case, I cannot see any point in taking up more of the Committee’s time by speaking to detailed amendments. All we really look for is an assurance that the Minister and his colleagues will now carefully reflect on all the points that have been made.
Of course the Government will reflect on this debate. I recognise its quality and depth, but I cannot give an indication that the Government have changed their general view or that we are particularly unsure about how we are applying it. We will work through the debate. There has been some specific criticism—for instance, of Clause 145(3)(f)—and we will look at it in particular. However, in general, we think we are going the right way. We will reflect upon the detail, but we think the general policy is right.
This has been an excellent debate, albeit a bit one-sided. The noble Lord, Lord Hunt of Wirral, gave a modicum of support to Her Majesty's Government, but his latter comments were perhaps the most useful points made in the whole of the debate. I shall not summarise or go back, but I am delighted that the three noble Lords who indicated their opposition to the clause standing part—the noble Baronesses, Lady Stern and Lady Miller, and the noble Lord, Lord Lester—spoke forcefully and with different kinds of experience. I was particularly delighted that other noble Lords joined in with their range of experience, including the noble Lord, Lord Rees-Mogg, from whom we do not hear often enough, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Young of Hornsey, who demonstrated that we not talking just about books and television interviews and that the heading “Criminal memoirs etc”—I draw attention to the addition of “etc”—covers a great deal. It is very clear that the provisions cover many ways of dramatising a criminal's life or whatever; it is not just the writing of books that is covered.
Lord Wedderburn of Charlton: While my noble friend is listing those who spoke, would he recognise that there is undoubtedly considerable concern at the latest remarks of my noble friend the Minister, and that there would be considerable support on these Benches, if it ever comes to it, for amending or removing parts of these sections?
Lord Borrie: I was only going to add one or two points. Several of the interventions made by the noble Lord, Lord Lester of Herne Hill, as distinct from his original speech, were probing, particularly on Clause 145, with the detailed instructions to judges expressed in such a broad way that I do not know how on earth you would get any judges to be consistent and persistent in their attitude to cases that may arise.
I listened to the Minister, and I respect the way in which the consultation has been conducted and the fact that the views of different groups have been taken into account. Unfortunately, however, I do not think that he has taken adequately into account the very strong views expressed in this House. He constantly referred to the views expressed in the House of Commons and the lack of opposition but, as is so often the case in the other place, that debate was hurried and encouraged by the Whips to be almost non-existent, whereas in this House, as we all know, there is freedom of speech on a considerable scale.
Finally, I direct my remarks to the noble Lord, Lord Hunt. He gave a modicum of support to the Government. He was not certain that he would vote against the proposition that these clauses should stand part of the Bill. I do not understand how he can be satisfied by the answers given by my noble friend the Minister. I am certainly not satisfied. I will not call for a vote today but Ministers and the whole House can be assured that we—and I am sure that I can speak also for those who supported this question today—will return to this at Report.
Clause 138 agreed.
Clauses 139 to 142 agreed.
Clause 143 : Deriving a benefit
Amendments 192A to 193ZC not moved.
Clause 143 agreed.
Clauses 144 and 145 agreed.
Clause 146 : Limits on recoverable amount
Amendments 193ZD and 193ZE not moved.
Clause 146 agreed.
Clause 147 : The available amount
Amendments 193ZF and 193ZG not moved.
193A: Clause 147, page 95, line 44, after “23” insert “, 23A”
I can move this government amendment speedily. It is a technical amendment to Clause 147. It has already been discussed how the court will calculate the amount of money available to an offender. As part of the process, it will take account of the offender’s relevant assets. Our amendment simply adds Section 23A of the 2000 Act to the list of orders included in the subsection. The amendment is technical but ensures that the changes introduced by the Counter-Terrorism Act 2008 are reflected in our scheme. The practical effect is that when calculating the available amount, the court will not take into account any of the offender’s assets that are already subject to a forfeiture order under Section 23A of the Terrorism Act 2000. I beg to move.
Amendment 193A agreed.
Clause 147, as amended, agreed.
Clauses 148 to 152 agreed.
Schedule 17 agreed.
Clauses 153 to 155 agreed.
Clause 156 : Assessment notices
194: Clause 156, page 102, line 20, leave out “within subsection (2)”
With these amendments we move to the part of the Bill dealing with data protection. The Bill has come a long way since it started out and been much improved, partly by the removal of the wide data-sharing powers that the Government originally proposed. We certainly welcome the Government's new amendments to Clause 156.
The Information Commissioner's Office has been calling for a number of changes to the data-control regime operated both by government and private bodies. We believe that the amendments tabled in this part of the Bill fulfil the needs of the Information Commissioner's Office. While we are happy about the progress being made on the face of the Bill, I refer the Minister back to the Criminal Justice and Immigration Act, when we brought in the sister set of powers to this. If data controllers working for government departments were found to be guilty or reckless with their data, there could be penalties. But the Government have still not brought in the orders to put that into effect, and last year the Bill went through, since when an awful lot of data have been lost.
One of the pieces of information that came out of the News International debacle was that various organisations such as the DVLA appear to have been selling data. Penalties for data controllers who have not been careful with data have still not been brought into being by the Government. I welcome the debate today on these amendments, but I should like to know when the orders to deal with recklessness by the Government will be brought in.
I turn now to the issues we are dealing with here. We need to be certain that the Information Commissioner's Office has the power to step in and take action when a data controller in the private sector is lacking in either control or assiduousness in ensuring that data are properly dealt with. As the amendments suggest, this would include when a data controller makes a statement known to be false. The amendments would cover not only recklessness and negligence but also any cover-up.
The amendments aim to cover a gap in the Bill. There is no doubt that the experience over the last 12 months has made them entirely necessary. We feel that it is essential to bring in the private sector, because at the moment private sector data controllers can be inspected only with their agreement.
This is particularly important at a time of widening data collection, data use and data sharing. The list from the ICO is extensive. I will not delay the Committee much, but I will give a few examples of how the list is growing. There is going to be targeted behavioural advertising and retention of search engine requests. There are credit reference agencies, which can have a significant effect on individuals’ lives, and insurance companies, which increasingly pull customer data. The list also includes retailers and loyalty card databases. I am sure that noble Lords have had the experience of those details being sold. When this happens, you get all sorts of letters that clearly indicate that somebody has been sold the information about you. There are vast amounts of these data.
We are pleased that the Government are strengthening this regime but we feel that they need to be certain that there are no gaps. In particular, we look forward to hearing the noble Lord, Lord Dubs, talk about the necessity for his amendment. We have tabled a similar one, but in the interests of time I will let the noble Lord speak to that issue. I beg to move.
We, too, have an amendment in this group, albeit an amendment to government Amendment 199C. I imagine that the Minister will speak to that in due course, but it might be convenient if I say a word or two about the amendments generally and our amendment at this stage.
Like the noble Baroness, Lady Miller, we are pleased that the Government had the good sense to excise the most offensive data-sharing clauses from the Bill before it even came to this place. We on this side have had ongoing discussions with the Government in the intervening period to try to reach accommodation on that which is left. The government amendments in this group, including Amendment 199C, were the subject of discussion between my honourable friend Dominic Grieve and Michael Wills and they go some way towards addressing concerns raised by colleagues in another place. We argued that it was not enough for just the public sector to be subject to assessment notices, as so much information is held and used by bodies that are not strictly public bodies.
A large and, indeed, increasing amount of government data is now handled and managed by third parties in the private sector. It is the responsibility of government to ensure that such data, with a high public value, are kept safe. We accept that, in the main, the public sector sets a reasonable standard for the handling of personal information, but unfortunately many of the recent high-profile data losses have involved private sector firms.
We have to balance ensuring that government data are kept safe, whoever is handling it, with protecting the privacy of individual companies. We want to make sure that all government data are properly handled and not at risk of security breaches, regardless of who is handling it. We therefore urged the Government to look at how third parties could best be subjected to regulation, without this disproportionately impacting on the rest of the private sector. That is the aim, I believe, of the government amendments.
However, because we also wish to protect private companies from undue interference, we would like to have a threshold for such extensions to those companies subject to assessment notices, including on a public interest test for the data held by them, and to ensure that there is maximum scrutiny of such extensions in Parliament. We do not want to see this power overused. It is for this reason that we have tabled Amendment 199D to the Government’s Amendment 199C to seek assurance that the commissioner and the Secretary of State must explicitly consider the public function of the data in question before designating the data controller as being a body subject to assessment notices.
I will speak to Amendments 198 and 201. Amendment 198 would insert the words, “not an excluded body”. It would extend the powers of the Information Commissioner to assess data controllers in the private sector. As I understand it, the Information Commissioner has asked for these powers.
Clause 153 will allow the Information Commissioner to conduct mandatory assessments of compliance with the Data Protection Act 1998 by public bodies. Although the commissioner has the power to inspect these bodies at present, he may do so only with prior notice and consent. This new power will extend to all ministerial and non-ministerial government departments, local authorities and certain police and NHS bodies. The commissioner will be required to provide guidance on how he intends to exercise these powers.
I should have said at the outset that I am a member of the Joint Committee on Human Rights. Amendments 198 and 201 stem from discussions that the committee has had on this subject.
The Government say that these assessment powers are primarily to raise awareness in the public sector and that there is no need to extend them to the private sector. I note that the CBI submitted evidence to the JCHR saying that it does not want the Information Commissioner to have authority to assess the private sector. We share the view of the CBI that adequate safeguards must always accompany powers of search and seizure, but we consider that the safeguards already in the Bill are significant and, indeed, provide greater protection than those relating to other compulsory powers of entry, search and seizure in the Bill. An assessment notice must specify the time at which a search or other inspection will take place and the time within which an individual data controller must comply. Also, rights to appeal against the terms of any notice are provided and there is express protection for legally privileged material. These are all safeguards that we have consistently called for with respect to other Bills where the Government considered that safeguards were more appropriately placed in secondary legislation.
We recommend that the Government reconsider the Information Commissioner’s request that the proposed power to issue assessment notices be extended to data controllers in the private sector. Extension of these proposals to the private sector should include safeguards for data controllers’ rights to respect for private life, if necessary. We do not consider that an amendment together with any necessary safeguards should be overly complex and we propose an amendment for the purposes of debate.
Amendment 201 concerns the failure by government departments or public authorities to comply with an assessment notice. It would give the Information Commissioner a power of sanction over public authorities that do not comply with assessment notices. At present, the Bill provides for no sanction for any individual data controller who fails to comply with an assessment notice. The Information Commissioner has called for a power of sanction to be applied, if only in respect of public authorities that fail to comply with assessment notices. He recommends that public authorities that ignore or fail to comply with assessment notices should be treated as if they were in contempt of court, as they currently are in respect of certain obligations under the Freedom of Information Act 2000.
We consider that these additional powers for the Information Commissioner would be a human rights-enhancing measure. While we note the Government’s view that it would be unusual for a department or other public body to ignore an assessment notice or to fail to comply with its terms, there is no reassurance in the Bill that this will not be the case. The amendment has been tabled to meet the Information Commissioner’s concerns in this respect.
This group of amendments deals with the new assessment notices provided for in Clause 156, and I thank all noble Lords who have gone some way to praise the Government for moving in some direction towards assessment notices.
Assessment notices are an important step towards building public confidence in the handling of personal data by public-sector data controllers. They go beyond the scope of the current “spot checks” arrangement. They extend the power of the Information Commissioner to assess not only government departments but other designated public authorities. One of the main features of this new power is that it is precautionary in the sense that the Information Commissioner may issue an assessment notice without the need for any suspicion of non-compliance with the data protection principles by the data controller, subject of course to the implicit requirements for the Information Commissioner to act reasonably and comply with the public law duties of that office.
During the debates in the other place, we listened to the arguments about the blurred distinction between the public and private sectors and the need to extend assessment notices to all data collectors, and we are grateful for the conversations that have been had since then. In response, we explained that, as the Bill stands, it is possible in certain circumstances to include some private or third-sector data controllers within the scope of assessment notices. This designation would be by order made by the Secretary of State when a person exercises public functions or provides, under a contract with a public authority, a service the provision of which is a function of the public authority.
However, we have listened to the arguments made in favour of further extending the scope of assessment notices to the private sector. We recognise that there are genuine concerns about the private sector’s handling of personal data—indeed, the noble Baroness, Lady Miller, referred to them—and that there are certain categories of private-sector data controller whose circumstances merit the application of assessment notices.
Government Amendments 198A, 199A and 199C address those scenarios. We remain unpersuaded that the assessment notice regime should apply automatically to all data controllers. Such an approach would be a little excessive and impose disproportionate burdens on business. Instead, our amendments enable the Secretary of State to designate by order certain descriptions of private-sector data controller as liable for assessment notices.
The amendments provide the Secretary of State with the power to make an order following a recommendation from the Information Commissioner. Where the Secretary of State was minded to accept such a recommendation, we would be able to proceed to make an order, which would be subject to the affirmative procedure, only following consultation with the affected sectors. Such consultations would be accompanied by a full impact assessment. The Secretary of State and the Information Commissioner will have to be satisfied that designation is necessary, taking into account the nature and quantity of data under the control of such persons and the damage or distress that may be caused by a contravention by such persons of the data protection principles.
This amendment does not provide for the designation of a particular data controller but for a description of a data controller. This means that the designation would not single out or list individual data controllers but would provide a description of a class of data controller—for example, credit reference agencies, which have been referred to in the debate—as liable to assessment notices. In addition, we are introducing a requirement for the Secretary of State to review, at least every five years, whether it continues to be appropriate for a public authority and necessary for a description of a private-sector data controller to be subject to the assessment notice regime.
Amendment 199D in the name of the noble Lord, Lord Henley, would amend government Amendment 199C and would require the Information Commissioner and the Secretary of State, before making an order under new Section 41A(2)(c) of the Data Protection Act, to consider the public function of the data under the control of those private-sector data controllers to be designated in such an order. We are not persuaded that this amendment is necessary. Data controllers exercising public functions may already be brought within the assessment notice regime by virtue of an order under new Section 41A(2)(b). That is the context in which this class of data controllers should be considered, not the context of the new order-making power introduced by the government amendments. We are confident that our amendments to Clause 156 provide for an extension that is in tune with the need for enhancing the current supervisory powers of the Information Commissioner without creating a disproportionate regulatory burden.
Amendments 194, 196, 198 and 199 in the name of the noble Baroness, Lady Miller, similarly seek to extend the categories of data controllers who are liable to an assessment notice. Amendment 199, for example, would make assessment notices directly applicable to public authorities without the need for an order. However, we do not consider such an extension across the whole public sector to be justified. The definition of “public authority” in the Bill relies on an order being made. Without an order, there would be uncertainty as to exactly which persons are covered. I hope that, having had an opportunity to consider our amendments and to hear what I briefly had to say about them, the noble Baroness may be persuaded that they offer a more balanced and proportionate approach and that she will not press her amendments to a vote today.
Government Amendments 199B, 200A and 200B in large measure simply re-order existing provisions in Clause 156, but there is one notable change in that judges are added to the list of persons excluded from the assessment notice regime. The Committee will of course appreciate the very special constitutional position of the judiciary that has led to us tabling this amendment. Currently, the only inspection regime involving the judiciary is provided for in Section 59 of the Courts Act 2003. That is limited to the inspection of the system that supports the carrying on of the business of the courts and the services provided for those courts. It expressly does not permit scrutiny of anyone exercising judicial discretion or making judicial decisions.
For judicial office-holders to be subject to the assessment notice procedure while exercising their professional judicial functions would compromise the constitutional principle of judicial independence, which this and every Government rightly have a statutory duty to uphold. There can be no disagreement that judicial impartiality and freedom from improper influence are at the heart of the fair administration of justice in this country. The Information Commissioner agrees with our making this special exception.
Government Amendments 205B and 205C are consequential to the proposed changes to Clause 156.
I turn now to sanctions for non-compliance with an assessment notice. Again, we have listened to the representations in the other place on this issue. The case for some express sanction in the event of non-compliance is reinforced now that private-sector data controllers can be brought within the scope of assessment notices. Our Amendments 206ZA to 206ZD would introduce changes to Schedule 18 to provide the Information Commissioner with the power to apply for a warrant under Schedule 9 to the Data Protection Act where a data controller had failed to comply with a requirement imposed by an assessment notice. As now, the Information Commissioner’s office would need to satisfy the judge that there were sufficient grounds for the issue of a warrant to search the data controller’s premises.
We have taken a different approach to enforcement from that taken in Amendments 195, 200, 201, 203, and 204, tabled by my noble friend Lord Dubs and the noble Baroness, Lady Miller. The key difficulty with treating the failure to comply with an assessment notice as a contempt of court or as an offence is that ultimately it does not provide the Information Commissioner with access to the premises in question, which is exactly what a warrant does; it provides the Information Commissioner with access. The former Information Commissioner agreed with us that this would not provide him with the access he believed was required.
Amendment 202, in the name of the noble Baroness, Lady Miller, would provide for an enforcement mechanism through the issuing of a warrant under Schedule 9 to the Data Protection Act to allow the Information Commissioner access to the data controller’s premises. I hope that noble Lords will agree that our amendments are intended in the same spirit and achieve a similar end.
Part 5 of Schedule 18 amends Section 55A of the Data Protection Act to prevent the imposition of a civil monetary penalty based on information obtained from either a good practice assessment or an assessment notice. Amendment 206 would remove this exemption, which we believe will provide a strong incentive for data controllers to consent to a good practice assessment. This exemption will not—I emphasise, not—provide immunity to data controllers from all enforcement action in relation to breaches that might be discovered during a good practice assessment or an assessment notice. The commissioner will still be able to issue an enforcement notice under Section 40 of the Data Protection Act to compel the data controller to comply with their data protection obligations if he discovers a breach of the data protection principles during any of these assessments.
As the noble Lord, Lord Henley, reminded us, these government amendments follow consultations that my ministerial colleague, Michael Wills, had with the Information Commissioner and the opposition spokespersons in the other place. I hope that the House will agree that this package of government amendments provides a workable scheme to bring those data controllers who need to be subject to additional scrutiny within the assessment notice regime and to provide the Information Commissioner with sufficient remedies where a data controller fails to comply with an assessment notice. In due course, I shall move the government amendments.
The noble Baroness asked me, harking back to last year and the Criminal Justice and Immigration Act, why the increased penalties in those Acts are not yet commenced. This answer may not totally satisfy her, but we are, together with the Information Commissioner’s office, monitoring the illegal trade closely. Should the position get worse, we will not hesitate to bring forward an order to increase the maximum penalty for this offence, but for the present we have no immediate intention to do so.
Let me deal with that last point first. That is very disappointing news because when I went to the launch of the Information Commissioner’s annual report this year, one of the main points was that the office welcomed the new legislation going on to the statute book last year to allow this power to the Secretary of State so that he or she could make an order which would bring in a satisfactory penalty. But it was very disappointed that these orders had not been brought in. I understand that the Government may be monitoring the situation with the Information Commissioner’s office. But its reaction to the lack of these orders seems to be at variance with the Government’s view that the orders are not necessary.
I should be most grateful for that. On the substance of my other amendments and the government amendments, I recognise that this is an evolutionary process. The government amendments are a couple of steps in the right direction of evolution. Therefore, the statutory regime surrounding the retention of data and the way in which they are managed is keeping pace with the technological capabilities, which is what has not happened to date. I am very pleased to see that we have more steps to ensure that citizens in the UK can feel a little more confident that their private data are regarded as valuable, precious and something that should be looked after properly. These steps are in the right direction. I beg leave to withdraw the amendment.
Amendment 194 withdrawn.
Amendments 195 and 196 not moved.
Amendment 197 withdrawn.
Amendment 198 not moved
198A: Clause 156, page 102, line 26, leave out “or”
Amendment 198A agreed.
Amendment 199 not moved.
Amendments 199A and 199B
199A: Clause 156, page 102, leave out line 29 and insert “or
(c) a person of a description designated for the purposes of this section by such an order.”
199B: Clause 156, page 103, leave out lines 20 to 46
Amendments 199A and 199B agreed.
199C: Clause 156, page 103, line 48, at end insert—
“(11A) Where a public authority has been designated by an order under subsection (2)(b) the Secretary of State must reconsider, at intervals of no greater than 5 years, whether it continues to be appropriate for the authority to be designated.
(11B) The Secretary of State may not make an order under subsection (2)(c) which designates a description of persons unless—
(a) the Commissioner has made a recommendation that the description be designated, and(b) the Secretary of State has consulted—(i) such persons as appear to the Secretary of State to represent the interests of those that meet the description;(ii) such other persons as the Secretary of State considers appropriate.(11C) The Secretary of State may not make an order under subsection (2)(c), and the Commissioner may not make a recommendation under subsection (11B)(a), unless the Secretary of State or (as the case may be) the Commissioner is satisfied that it is necessary for the description of persons in question to be designated having regard to—
(a) the nature and quantity of data under the control of such persons, and(b) any damage or distress which may be caused by a contravention by such persons of the data protection principles.(11D) Where a description of persons has been designated by an order under subsection (2)(c) the Secretary of State must reconsider, at intervals of no greater than 5 years, whether it continues to be necessary for the description to be designated having regard to the matters mentioned in subsection (11C).”
Amendment199D (to Amendment 199C) not moved.
Amendment 199C agreed.
Amendment 200 not moved.
Amendments 200A and 200B
200A: Clause 156, page 104, leave out lines 2 to 11
200B: Clause 156, page 104, line 18, at end insert—
“41AB Assessment notices: limitations
(1) A time specified in an assessment notice under section 41A(5) in relation to a requirement must not fall, and a period so specified must not begin, before the end of the period within which an appeal can be brought against the notice, and if such an appeal is brought the requirement need not be complied with pending the determination or withdrawal of the appeal.
(2) If by reason of special circumstances the Commissioner considers that it is necessary for the data controller to comply with a requirement in an assessment notice as a matter of urgency, the Commissioner may include in the notice a statement to that effect and a statement of the reasons for that conclusion; and in that event subsection (1) applies in relation to the requirement as if for the words from “within” to the end there were substituted “of 7 days beginning with the day on which the notice is served”.
(3) A requirement imposed by an assessment notice does not have effect in so far as compliance with it would result in the disclosure of—
(a) any communication between a professional legal adviser and the adviser’s client in connection with the giving of legal advice with respect to the client’s obligations, liabilities or rights under this Act, or(b) any communication between a professional legal adviser and the adviser’s client, or between such an adviser or the adviser’s client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.(4) In subsection (3) references to the client of a professional legal adviser include references to any person representing such a client.
(5) Nothing in section 41A authorises the Commissioner to serve an assessment notice on—
(a) a judge,(b) a body specified in section 23(3) of the Freedom of Information Act 2000 (bodies dealing with security matters), or(c) the Office for Standards in Education, Children’s Services and Skills in so far as it is a data controller in respect of information processed for the purposes of functions exercisable by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills by virtue of section 5(1)(a) of the Care Standards Act 2000.(6) In this section “judge” includes —
(a) a justice of the peace (or, in Northern Ireland, a lay magistrate),(b) a member of a tribunal, and(c) a clerk or other officer entitled to exercise the jurisdiction of a court or tribunal;and in this subsection “tribunal” means any tribunal in which legal proceedings may be brought.”
Amendments 200A and 200B agreed.
Amendment 201 not moved.
Clause 156, as amended, agreed.
Amendments 202 to 204 not moved.
Clauses 157 and 158 agreed.
205: After Clause 158, insert the following new Clause—
In section 77 of the Freedom of Information Act 2000 (c. 36) (offence of altering etc records with intent to prevent disclosure), after subsection (4) insert—
“(5) Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980, a magistrates’ court may try an information relating to an offence under this section if the information is laid—
(a) before the end of the period of three years beginning with the date of the commission of the offence, and(b) before the end of the period of six months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge.(6) For the purpose of subsection (5)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to his knowledge shall be conclusive evidence of that fact, and(b) a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved.””
This amendment sets out to put right what I think has been a mistake in the way in which various pieces of legislation have been drafted. I shall seek to persuade the Government that it is a mistake in order that they can use my amendment as an opportunity to put things right. This amendment does not come from the Joint Committee on Human Rights. It comes with the help of the freedom of information campaign. Under Section 77 of the Freedom of Information Act, it is an offence for a public authority or an official to deliberately destroy or alter a record which has been requested if the intention in doing so is to prevent the release of information to which the requester is entitled. That is fairly clear.
The offence also applies to the deliberate destruction of a record requested under the Data Protection Act, which gives individuals the right to obtain personal information about themselves. The offence is committed only where the act is deliberate; that is, where the record is deliberately destroyed and amended after being requested with the intention of frustrating the applicant’s legal right of access. An official who accidentally destroys the record or who does so in accordance with the authority’s established record destruction policy commits no offence. So there are safeguards.
The offence can be tried only in a magistrates’ court where the maximum fine is level 5 on the standard scale, £5,000. There is no provision for this offence to be tried on indictment. Your Lordships will think, “So far, so good. Why do we need the amendment?”. I shall explain. Section 127(1) of the Magistrates’ Courts Act 1980 prohibits a prosecution from being brought more than six months after the offence has been committed. This provision would make it virtually impossible to bring a successful prosecution for the Section 77 offence under the Freedom of Information Act. Therefore, with a very tight time limit, I contend that it is virtually impossible to bring a successful prosecution.
The deliberate destruction of requested records is likely to be detected only during an investigation by the Information Commissioner, which will rarely even have started within six months of the offence. There are three reasons why there might be a delay which would take up the whole of the six months within which a prosecution has to be brought for it to be successful.
For example, there may be a delay in responding to a freedom of information request. Although the Act requires an authority to respond to a request within 20 working days, it permits an unspecified reasonable extension where the authority has to consider the disclosure of exempt information under the Act’s public interest test. The commissioner recommended that the extension should normally be limited to an additional 20 working days and should never exceed 40 working days. In practice, it sometimes runs to many months. The commissioner has described how the National Offender Manager Service responded to one request by taking 12 consecutive extensions, each of 20 working days, so that the request was answered one year after it was made. That is the first cause of delay which can make it difficult to bring forward a prosecution within six months.
The second example is where the requester is dissatisfied with the authority’s response to a request. He or she cannot complain directly to the Information Commissioner, but must first ask the authority to reconsider the matter under its own internal complaints procedure, and there is no statutory time limit for this process. The commissioner said that it should normally be completed within 20 working days, with the outside being 40 working days. In practice, the process sometimes takes substantially longer. On one occasion, DBERR—I find the names of government departments difficult at times; they do not trip off the tongue at all, and it was easier in the old days—took 21 months to complete an internal review, only doing so after the commissioner’s intervention. And that is a government department.
The third example is that the Information Commissioner’s office has itself a substantial backlog of complaints, and on average does not even begin an investigation until more than six months after receipt of a complaint. Some investigations are not completed until more than three years after the complaint has been made. It is therefore virtually impossible to bring a successful prosecution.
The effect of this amendment would be to allow a prosecution to be brought within six months of sufficient evidence of the offence coming to the prosecutor’s knowledge rather than within six months of the offence being committed. However, a prosecution could not be brought more than three years after it has been committed. The argument is a strong one. The date on which sufficient evidence comes to the prosecutor’s knowledge would be established by a certificate signed by the prosecutor. For the purposes of this offence, the prosecutor would be the Information Commissioner, the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland.
This problem has arisen under other legislation. I will not bore the Committee with too many examples, but similar action has had to be taken to enable a prosecution to be achieved because the six-month time period was too short. For example, prosecutions under Section 31 of the Animal Welfare Act 2006, Section 64A of the Public Health (Control of Disease) Act 1973, Section 12(4A) of the Theft Act and Section 129 of the Fair Trading Act 1973 have been brought. More recently, the building regulations were amended because of an offence that was often detected only long after the six-month period for bringing a prosecution had elapsed.
I think that the case is fairly clear and I urge the Government to consider it seriously. I understand that the Information Commissioner has said informally that he agrees with the principle of the amendment, although in fairness to my noble friend on the Front Bench, I do not think that that is on the public record; it is simply something that has been said informally. Nevertheless, the argument for the amendment is strong and I beg to move.
I thank my noble friend for moving his amendment so powerfully. Section 77 of the Freedom of Information Act makes it an offence to alter, deface, block, erase, destroy or conceal records with the intent to prevent the disclosure of information which a requester would have been entitled to receive from the public authority under Section 1 of that Act or Section 7 of the Data Protection Act. The effect of Section 127(1) of the Magistrates Courts Act 1980 is that a prosecution must be commenced,
“within 6 months from the time the offence was committed”.
My noble friend’s amendment would extend the time period to prosecute to six months from the date that the prosecutor has knowledge of sufficient evidence to justify commencing a prosecution, and in any event within three years of the commission of the offence.
The Freedom of Information Act 2000 came into force only in 2005, and I have to tell my noble friend that we have no evidence at present that the current six-month time limit presents a systemic problem for the Information Commissioner or any other prosecutor in taking action under Section 77. However, I shall say this, which I hope will give my noble friend some comfort. We will listen to the views of the Information Commissioner and other interested parties on this point, and if there is evidence that the current legislation is causing systemic difficulties, we will look for ways to address the matter, if necessary by means of an alternative legislative vehicle in the future. However, I cannot go further than that today on behalf of the Government.
I shall not say that one should be grateful for small mercies; rather I thank my noble friend. It is a reasonably helpful answer and I appreciate that there may not be examples where people have deliberately used the six-month period to evade a prosecution. Nevertheless, it may be that not too many people know about it, but after the debate they might do, so we had better be careful. Again, I am grateful for what my noble friend has said, and I beg leave to withdraw the amendment.
Amendment 205 withdrawn.
205A: After Clause 158, insert the following new Clause—
“Police retention of photographs
(1) The Secretary of State must, as soon as possible and not later than three months after Royal Assent, amend Code D made under section 67(3) of the Police and Criminal Evidence Act 1984 (c. 60) (codes of practices—supplementary) as follows.
(2) After article 3.3 insert—
“3.4(a) Where an officer takes a photograph or photographs of an individual who has not been arrested or charged with any criminal activity, those photographs will not be retained for longer than 1 year, unless the subject of the photograph is subsequently charged and convicted with a crime.
3.4(b) This subsection applies to, but is not limited to, evidence gathered by Forward Intelligence Teams and other evidence gathering operations.””
My amendment deals with the retention of data of a different sort: that of personal photographs. If a citizen attends a public protest or any other kind of public demonstration in a perfectly peaceful capacity and law-abiding way, the police can and often do take your photograph and then retain it—and do so, as far as I understand, indefinitely. The point of my amendment is to discover the rules around this.
The amendment would mirror the changes set in motion by the European Court of Human Rights in the Marper case to limit the amount of time that innocent people’s DNA can be kept on a database. I do not believe that photographs of innocent people should be kept on any sort of database either. It is particularly shocking that according to the Guardian, the database on which innocent people’s photographs are kept is called “CRIMINT”, which already suggests that they are regarded as criminals. My amendment would alter the PACE code so that photographs cannot be kept for longer than a year unless the subject is subsequently charged and convicted of a crime.
A photograph in a record of participation of protests is personal information, and keeping it on file as a record of potential criminal activity, which is the excuse that was given to me when I was photographed in Brighton taking part in a protest outside the local authority; it was in case there was going to be subsequent criminal activity on my part. I imagine, therefore, that I am on this CRIMINT database, so perhaps I should declare an interest in moving this amendment.
We need to know about this database. The Answer from the Government that I received on 23 June to my Written Question said:
“There are a number of databases maintained by police forces and policing organisations with the capability of storing images. However, this information is not held centrally”.—[Official Report, 23/6/09; col. WA 272.]
That suggests that the Government do not know much about this database or about how many people’s images are retained on databases. They need at least to issue more guidance to the police with regard to these.
When Assistant Commissioner Chris Allison was asked on the edition of “Panorama” entitled “Whatever Happened to People Power?” about what happens to the data, particularly the photographs, collected by the forward intelligence teams, his reply was an unspecific, “I don’t know”. If you combine the Answer to my Written Question, which is that the Government do not know what images are being kept for the purposes of databasing and profiling, and the assistant commissioner’s reply, that suggests that there is a considerable gap in the care that is being taken with people’s photographs.
At the very least, my amendment should engender some debate on this issue, but I may want to come back to it on Report with the view that it should go on to statute, as in this case the PACE codes have a lacuna in them. I beg to move.
I have considerable sympathy for the amendment put forward by the noble Baroness. It fits in with the stance that we on these Benches have taken against the Government’s surveillance society and against the retention of DNA. I recommend that she returns to it on Report, when I hope we might be debating it at a slightly more convenient time and not on the last day of term when many of us are hoping to catch trains or whatever. I will be interested to hear whether the Government have any response to this and, if they have, what sort of response they are going to try to put forward.
The noble Baroness has the misfortune to be introducing this excellent amendment at the end of a very long Committee stage of this long—many would say overlong—Bill, probably less than an hour before the House rises for the Summer Recess, so obviously there is no chance of proceeding further with it today. Like the noble Lord, Lord Henley, though, I hope that she will return to it on Report, when I am certain that she will get plenty of support.
I will try to keep my reply to an hour and a half; I hope that will fit with the mood of the House.
This is an interesting proposition. We do not think that the right answer is to interfere with the PACE codes, as we do not think this is really a PACE issue. I will come to that shortly. However, there clearly is an issue.
I shall just say a word about the case of Wood, the judicial review challenge to the taking of overt photographs in April 2005 and the subsequent retention of those photographs by the Metropolitan Police. Andrew Wood’s claim was that his right to respect for privacy under Article 8 of the ECHR had been violated by the taking and retention of the photos.
Its judgment, which was a majority judgment—that is not meant to be an implication in any way that it is one that the Government do not like; it is just a fact—was that taking the overt photographs at this public order event was done in pursuance of a legitimate aim, but that it was not proportionate to retain them once it had become clear that the person photographed, Mr Wood, had not committed any offence at the event in question, which, on the facts of this particular case, was within days. The fact that Mr Wood had been seen briefly associating with someone with a record of public order offences was found to be insufficient to justify the lengthier retention of the photographs for potential and unknown future use.
Therefore, while the Court of Appeal has endorsed the taking of photographs at public order events in so far as it has not found the practice to be unlawful, it has found that the continuing retention of photographs will generally have to be justified by the existence of clear grounds for suspecting that the individual photographed may have committed an offence at the event in question.
The Metropolitan Police say that the amendment does not add huge value in the context of the Wood judgment, as it is already the practice of the Metropolitan Police Public Order Unit to destroy photographs well within a year when no offence has been committed. The Home Office is considering the implications of the Wood judgment carefully with the police service. Rather than amending PACE codes of practice and setting out what might be seen as an arbitrary one-year time limit, we believe that the more effective route is to work with ACPO to ensure that all forces are clear about the implications of the judgment and that appropriate and effective guidance is issued on compliance with the judgment. All forces need to review their policies and procedures on taking and retaining images of individuals in the light of the Court of Appeal ruling.
Nothing in the Wood judgment places a time limit on the retention of images. A retention period of one year for a photograph of an individual who has not been arrested or charged with any criminal activity would appear to go against the spirit of the Data Protection Act. Under this Act, personal information must comply with the eight data protection principles, one of which, as the noble Baroness knows much better than me, stipulates that personal information must not be kept for longer than necessary. The one-year time limit also appears to run contrary to the judgment in Wood, in which the Court of Appeal held that the photograph should have been destroyed as soon as it became clear that he has not committed any offence. It said that that should have been apparent within a few days.
The Police and Criminal Evidence Act 1984 governs the taking, retention and use of photographs of persons detained at a police station, as well as photographs taken on the street of people who have been arrested by a police officer, detained or given a fixed penalty notice. PACE code D sets out the procedures for conducting identification parades to enable witnesses and victims to identify suspects. These powers are focused on evidence of either the identity of the person suspected of the offence or evidence of the offence in question. The amendment would extend the scope of PACE code D’s provisions to all images taken by the police, including intelligence information. We are not convinced that the codes of practice are the appropriate vehicle for governing retention of all photographs taken by the police. Paragraph 3.4 of PACE code D relates to the procedures governing the conduct of identification procedures when the identity of a suspect is known, not the retention of images. The inclusion of paragraphs 3.4(a) and (b) in the noble Baroness’s amendment is in danger of being slightly confusing. I know that the noble Baroness is not pushing for the amendment today, however, and I am grateful for raising what is undoubtedly an important issue. I ask her to withdraw the amendment.
I thank the noble Lords, Lord Monson and Lord Henley, for their support for this amendment, and I thank the Minister for taking it seriously and encouraging me to think further about the matter before Report. I did not base my amendment on the Wood case, although I congratulate Mr Wood on having taken that case. The amendment has arisen from a number of protesters over a length of time who have found it particularly offensive that their photographs are taken and particularly horrific that they are stored on a database. Another example is that of Diana Phillips, who wrote into the Guardian saying that she was photographed with her six and 10 year-old children. She made the point that her children probably had “steadily growing police files”, although they had done nothing wrong.
I shall bear in mind the Minister’s comments about the fact that PACE is probably not the place in which to try to set something of a statutory framework. The only reason why I chose a year is because that is what it is for in the case of DNA retention. Actually, I agree with the Minister that if you have had your photograph taken and there is no need for it to be kept, it should be destroyed immediately. I take on board what he says about intelligence and terrorism. That is a vastly different issue; undoubtedly, when I check up on the statute surrounding that on intelligence gathering, I will find that it already has a much more satisfactory framework than does photographing innocent people, for which there is no framework whatever at the moment. That is what this short debate has discovered—that the retention of those innocent people’s images should have some limitation and actually does not.
We are still no wiser about what the volume is. I should be very grateful if the Minister could try to discover from ACPO what sort of volume of image retention we are dealing with here. We should know whether there is a large-scale problem here or whether it is relatively limited.
I look forward to coming back to this issue on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 205A withdrawn.
Schedule 18 : Amendments of the Data Protection Act 1998 (c. 29)
Amendments 205B and 205C
205B: Schedule 18, page 179, line 26, leave out ““, 41A(8)”” and insert ““, 41AB(2)””
205C: Schedule 18, page 179, line 27, at end insert “—
(a) in subsection (4) insert at the appropriate place—“section 41A(2)(c),”, and”
Amendments 205B and 205C agreed.
Amendment 206 not moved.
Amendments 206ZA to 206ZD
206ZA: Schedule 18, page 182, line 30, at end insert—
“(1A) After sub-paragraph (1) of paragraph 1 insert—
“(1A) Sub-paragraph (1B) applies if a circuit judge or a District Judge (Magistrates’ Courts) is satisfied by information on oath supplied by the Commissioner that a data controller has failed to comply with a requirement imposed by an assessment notice.
(1B) The judge may, for the purpose of enabling the Commissioner to determine whether the data controller has complied or is complying with the data protection principles, grant a warrant to the Commissioner in relation to any premises that were specified in the assessment notice; but this is subject to sub-paragraph (2) and paragraph 2.””
206ZB: Schedule 18, page 182, line 31, leave out “In paragraph 1(3)” and insert “In sub-paragraph (3) of that paragraph—
(a) for “sub-paragraph (1)” substitute “this Schedule”, and”
206ZC: Schedule 18, page 182, line 38, leave out from “which” to end of line 39 and insert “—
(i) in the case of a warrant issued under sub-paragraph (1), may be such evidence as is mentioned in that paragraph;(ii) in the case of a warrant issued under sub-paragraph (1B), may enable the Commissioner to determine whether the data controller has complied or is complying with the data protection principles;”
206ZD: Schedule 18, page 183, line 5, at end insert—
“( ) After sub-paragraph (1) of paragraph 2 insert—
“(1A) In determining whether the Commissioner has given an occupier the seven days’ notice referred to in sub-paragraph (1)(a) any assessment notice served on the occupier is to be disregarded.”
( ) In paragraph 5 for “evidence in question would not be found” substitute “object of the warrant would be defeated”.”
Amendments 206ZA to 206ZD agreed.
Schedule 18, as amended, agreed.
Clause 159 : Orders, regulations and rules
Amendment 206A not moved.
207: Clause 159, page 108, line 26, leave out “4,”
Amendment 207 agreed.
Clause 159, as amended, agreed.
Clause 160 agreed.
Schedule 19 : Minor and consequential amendments
Amendments 208 to 218D
208: Schedule 19, page 192, line 27, at end insert—
““Coroner for Treasure.””
209: Schedule 19, page 192, line 35, at end insert—
““Coroner for Treasure.””
210: Schedule 19, page 193, line 26, at end insert—
““Coroner for Treasure””
211: Schedule 19, page 194, line 36, leave out from “see” to “in” in line 37 and insert “Chapter (Investigations concerning treasure) of Part 1 of the Coroners and Justice Act 2009 (which confers jurisdiction on the Coroner for Treasure”
212: Schedule 19, page 195, line 1, leave out sub-paragraphs (2) to (4) and insert—
“(2) In subsection (1), for “coroner for the district in which the object was found” there is substituted “Coroner for Treasure”.
(3) In subsection (4), for “coroner” there is substituted “Coroner for Treasure”.
(4) For subsection (5) there is substituted—
“(5) If the office of Coroner for Treasure is vacant, notification under subsection (1) must be given to an Assistant Coroner for Treasure.”
(5) After that subsection there is inserted—
“(6) Proceedings for an offence under this section may be brought within the period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge; but no such proceedings may be brought by virtue of this subsection more than three years after the commission of the offence.
(7) For the purposes of subsection (6)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which the evidence referred to in that subsection came to the prosecutor’s knowledge shall be conclusive evidence to that effect; and(b) a certificate to that effect and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.(8) In its application to Northern Ireland this section has effect as if—
(a) in subsection (1), for “Coroner for Treasure” there were substituted “coroner for the district in which the object was found”;(b) in subsection (4), for “Coroner for Treasure” there were substituted “coroner”; and(c) in subsection (5), for the words from “Coroner for Treasure” to the end there were substituted “coroner for a district is vacant, the person acting as coroner for that district is the coroner for the purposes of subsection (1).””
213: Schedule 19, page 195, line 21, leave out “a senior coroner” and insert “the Coroner for Treasure”
214: Schedule 19, page 195, line 30, leave out “senior coroner” and insert “Coroner for Treasure”
215: Schedule 19, page 195, line 33, leave out “senior coroner” and insert “Coroner for Treasure”
216: Schedule 19, page 195, line 39, leave out “senior coroner” and insert “Coroner for Treasure”
217: Schedule 19, page 196, line 5, leave out “section 21” and insert “section (Investigations concerning treasure)”
218: Schedule 19, page 198, leave out lines 15 to 18 and insert—
“Coroner for Treasure Paragraph 1 of Schedule (Coroner for Treasure and Assistant Coroners for Treasure) to the Coroners and Justice Act 2009 Deputy Chief Coroner Paragraph 2(5) of Schedule 7 to the Coroners and Justice Act 2009”
“Coroner for Treasure
Paragraph 1 of Schedule (Coroner for Treasure and Assistant Coroners for Treasure) to the Coroners and Justice Act 2009
Deputy Chief Coroner
Paragraph 2(5) of Schedule 7 to the Coroners and Justice Act 2009”
218A: Schedule 19, page 198, line 20, at end insert—
“Criminal Justice Act 2003 (c. 44)In Schedule 21 to the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), in paragraph 11—
(a) in paragraph (d) omit “in a way not amounting to a defence of provocation”, and(b) in paragraph (e), after “self-defence” insert “or in fear of violence”.”
218B: Schedule 19, page 201, leave out lines 32 to 36 and insert—
““(2F) The powers of the Court of Appeal to make, discharge or vary a witness anonymity order under Chapter 2 of Part 3 of the Coroners and Justice Act 2009 may be exercised by a single judge in the same manner as they may be exercised by the Court.””
218C: Schedule 19, page 202, line 3, leave out from “2009” to “80” in line 4 and insert—
“(l) to discharge or vary a witness anonymity order under any of sections 78, 79 or”
218D: Schedule 19, page 202, leave out lines 8 to 12 and insert—
““(3E) Subject to section 44(4) above, the powers of the Court of Appeal to make, discharge or vary a witness anonymity order under Chapter 2 of Part 3 of the Coroners and Justice Act 2009 may be exercised by a single judge of the Court.””
Amendments 208 to 218D agreed.
Amendment 218DA had been withdrawn from the Marshalled List.
Schedule 19, as amended, agreed.
Schedule 20 : Transitional, transitory and saving provisions
Amendments 218E to 220
218E: Schedule 20, page 212, line 28, at end insert—
“(8) Sub-paragraphs (9) to (11) apply where an order under paragraph 2 of Schedule 2 has the effect of creating a coroner area (“the new area”) that consists of or includes some or all of the area of one or more existing coroner areas (“the old areas”).
(9) A person who does not meet the criteria in paragraph 3 of Schedule 3, or who falls within paragraph 4 of that Schedule, may nevertheless become the senior coroner or an area coroner for the new area at its inception if he or she is someone who—
(a) was treated by virtue of sub-paragraph (2) above as having been appointed as the senior coroner for one of the old areas, and(b) held office as such immediately before the inception of the new area.(10) A person who does not meet the criteria in paragraph 3 of Schedule 3, or who falls within paragraph 4 of that Schedule, may nevertheless become an assistant coroner for the new area at its inception if he or she is someone who—
(a) was treated by virtue of sub-paragraph (2) or (3) above as having been appointed as the senior coroner or an assistant coroner for one of the old areas, and(b) held office as such immediately before the inception of the new area.(11) Paragraph 10 of that Schedule does not apply to—
(a) a person within paragraphs (a) and (b) of sub-paragraph (9) above who becomes the senior coroner for the new area at its inception;(b) a person within paragraphs (a) and (b) of sub-paragraph (10) above who becomes an assistant coroner for the new area at its inception.”
219: Schedule 20, page 212, line 28, at end insert—
“Coroner for TreasureIn the case of the first appointment to the office of Coroner for Treasure, paragraph 2(b) of Schedule (Coroner for Treasure and Assistant Coroners for Treasure) does not apply to a person holding office as a coroner, deputy coroner or assistant deputy coroner under the 1988 Act on the coming into force of that Schedule.”
220: Schedule 20, page 212, line 30, leave out paragraphs 4 to 6
Amendments 218E to 220 agreed.
Amendment 221 not moved.
221A: Schedule 20, page 216, line 38, after “force” insert “of section 154(1)”
I will also speak extremely briefly to government Amendments 221B to 221F and 224. I have two speeches, and will make the shorter one. These are minor amendments to Schedule 20, which make transitional provision for various aspects of the Bill. I am happy to provide further details to the Committee but, in the interests of speed, I beg to move.
Amendment 221A agreed.
Amendments 221B to 221FA
221B: Schedule 20, page 216, line 42, after “force” insert “of section 154(1)”
221C: Schedule 20, page 217, line 32, after “of” insert “paragraph 53 of Schedule 8 to”
221D: Schedule 20, page 217, line 35, leave out sub-paragraph (2)
221DA: Schedule 20, page 221, line 16, at end insert—
“Confiscation orders38A The amendments made by sections (Appeals against certain confiscation orders (England and Wales)) and (Appeals against certain confiscation orders (Northern Ireland)) (appeals against certain confiscation orders) apply to appeals which are pending when this Act is passed (as well as appeals made after that time).”
221E: Schedule 20, page 221, line 22, leave out “6 or 8 to 12” and insert “6, 8, 10 or 12”
221F: Schedule 20, page 221, line 29, leave out “7 or 10” and insert “7, 9 or 11”
221FA: Schedule 20, page 223, line 10, at end insert—
“Assessment noticesUntil paragraph 8 of Schedule 4 to the Courts Act 2003 (c. 39) comes into force paragraph 1(1A) of Schedule 9 to the Data Protection Act 1998 (c. 29) (as inserted by paragraph 13(1A) of Schedule 18 to this Act) has effect as if the words “or a District Judge (Magistrates’ Courts)” were omitted.”
Amendments 221B to 221FA agreed.
Schedule 20, as amended, agreed.
Clause 161 agreed.
Schedule 21 : Repeals
221G: Schedule 21, page 224, line 38, at end insert—
“Criminal Justice Act 2003 (c. 44) In Schedule 21, in paragraph 11(d), “in a way not amounting to a defence of provocation”.”
“Criminal Justice Act 2003 (c. 44)
In Schedule 21, in paragraph 11(d), “in a way not amounting to a defence of provocation”.”
Amendment 221G agreed.
Schedule 21, as amended, agreed.
Clauses 162 and 163 agreed.
Clause 164 : Extent
Amendments 222 to 223
222: Clause 164, page 110, line 31, leave out “5,”
222A: Clause 164, page 110, line 42, after “14(2)” insert “, 38A”
223: Clause 164, page 111, line 3, leave out “6,”
Amendments 222 to 223 agreed.
Clause 164, as amended, agreed.
Clause 165 : Commencement
Amendments 223A and 223B had been withdrawn from the Marshalled List.
Clause 165 agreed.
Clause 166 agreed.
In the Title
224: In the Title, line 1, after “coroners” insert “, to investigation of deaths”
Amendment 224 agreed.
Amendment 225 had been withdrawn from the Marshalled List.
Title, as amended, agreed.
Bill reported with amendments.