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The Attorney-General (Baroness Scotland of Asthal): My Lords, the decision of the European Court of Human Rights is not final. The United Kingdom courts have found the exercise of the powers pursuant to Section 44 of the Terrorism Act 2000 to be ECHR-compatible. That is a view with which the Government concur. The Home Secretary is giving careful consideration to the judgment and will request a referral to the Grand Chamber.
Baroness Howells of St Davids: I thank my noble and learned friend for her very interesting reply, but I am sure that she is aware that the removal from the statute book of the outdated Vagrancy Act was the result of the adverse effect that it had on young black males, some as young as seven. It caused a great problem to this country. In reintroducing the measure under Section 44 of the Terrorism Act, the Government gave some interesting reasons. Perhaps my noble and learned friend can tell the House whether any of those reasons have been satisfied. Could she say how many acts of terrorism and criminal activity have been thwarted in the past 12 months by the Act and whether it has reassured the public?
Baroness Scotland of Asthal: My Lords, I do not have the precise figures for the number of acts of terrorism or criminal activity. Noble Lords will know that part of the reason why stop and search was used was to act as a deterrent. It has been an effective tool and it has been honed. I say to my noble friend that the criticisms made by the community about Section 44 and the way in which it was operated have been taken very seriously. As a result of the work done with the community and the Metropolitan Police, which has responded to the community's concern, from mid-2009 we have seen a drop in its use in the capital of about 40 per cent.
Baroness Neville-Jones: My Lords, the Metropolitan Police has already reviewed the use of Section 44 powers and now is deploying them only at pre-identified significant locations when specific operations have been agreed for specific areas. If that is the case, rather than appealing, why do the Government not amend the Terrorism Act immediately to reflect that change in the use of the powers?
Baroness Scotland of Asthal: My Lords, the noble Baroness is quite right about the more targeted use to which the power has been put. I am sure that she will have seen the erudite judgment made by the House of Lords about the structure of Section 44 and the way in which it can be used proportionately. What she has described is the proportionate and appropriate use of the law as it currently stands. As I said, my right honourable friend the Home Secretary is looking at the judgment carefully and considering whether to refer this matter to the Grand Chamber. We shall have to await the outcome.
Lord Lloyd of Berwick: My Lords, Section 44 of the Terrorism Act was intended to deal with exceptional situations. Does the decision of the European Court
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Baroness Scotland of Asthal: My Lords, I understand what the noble and learned Lord says, but the tragedy for our country is that, at the moment, we live in exceptional times. To be under severe threat from terror is the exception and I hope that we in this country never get to the stage when we accept it as the norm. To respond to those exceptional circumstances, we have to make exceptional effort to defeat the terrorists, which is what we are doing.
Lord Mackenzie of Framwellgate: My Lords, does my noble and learned friend agree that most members of the British public, provided that they are dealt with reasonably, courteously and fairly, are quite prepared to give up a little bit of liberty in the interests of fighting the scourge of terrorism?
Baroness Scotland of Asthal: My Lords, I can certainly assure my noble friend that I have found that the normal, good people in this country understand absolutely the threat with which they are faced. They are responding with remarkable British phlegm and courage and helping to make sure that we stay as safe as we possibly can.
Baroness Hamwee: My Lords, perhaps I should declare an interest as a normal, good person who has been stopped and searched; the Security Minister, too, is a normal, good person who has been stopped and searched. The Secretary of State has a role in confirming authorisations. Can the noble and learned Baroness tell us, of course without disclosing any operational or secure information, what criteria the Secretary of State uses?
Baroness Scotland of Asthal: My Lords, the police will do an assessment, identifying the risks that are posed and setting out the reasons why they believe that a particular site needs to be subject to protection. A detailed report will be made and then there will be a decision about whether there should be an affirmation of the order.
Lord Campbell of Alloway: My Lords, I thank the noble and learned Baroness for her exposition of the true position in this country under the decisions of the Strasbourg court. We retain in our Supreme Court the right to make our own decisions, a matter that was not referred to in yesterday's debate.
Baroness Scotland of Asthal: My Lords, the noble Lord is absolutely right. The Supreme Court retains the right and the duty to express itself on our law. It has done so cogently and well. Of course it is similarly the right of the European Court of Human Rights to express what it thinks the position is and the Grand Chamber usually has the final say.
Lord Pannick: My Lords, will the noble and learned Baroness confirm that what concerned the European Court of Human Rights were the absence of any guidance as to when an authorisation could be issued and the absence of any guidance to individual police officers as to when they should consider exercising these powers? Would it not be better for the Government, rather than appealing to the Grand Chamber, to concentrate on bringing forward proposals to remedy these undoubted defects in our law?
Baroness Scotland of Asthal: My Lords, there is an issue as to whether the European Court of Human Rights understood the impact of the guidance that is provided under PACE and otherwise. The noble Lord will know that the Supreme Court identified the guidance and the support that enabled it to come to the conclusion that the powers were compatible. The European Court took a different view. That is quite an interesting difference.
Lord Tyler: My Lords, in declaring an interest that my son is a freelance photographer, may I ask the Attorney-General whether she is satisfied that the behaviour of the police in relation to both professional photographers and tourists who are taking photographs, particularly around London, is in accordance with the stop and search powers that they have at their disposal?
Baroness Scotland of Asthal: My Lords, guidance has been provided that, if used correctly, makes sure that those powers are proportionately and appropriately used. There is always a question, of course, as to whether good guidance is followed on every occasion.
Lord Clement-Jones: My Lords, I am moving Amendment 157 in the absence of my noble friend Lady Miller, whom I was hoping would return to these Benches. I do so without a particular brief, while Members of the House disperse in good order, and as slowly as I possibly can. This is to allow some debate to be had on this amendment in the name of my noble friend, which of course is on a matter of considerable importance. I know that the Minister will give a full reply. I beg to move.
Lord Lucas: The noble Lord need not have worried; I am capable of carrying on at considerable length, although, in the hope that we may make some progress with the Bill today, I shall try to keep it relatively short.
The first two amendments are, to my mind, quite clear in their intent: that is to make sure that the three options that the Government have given themselves actually happen. I cannot see any circumstances in which it would be desirable for any of the events in paragraphs (a), (b) and (c) of subsection (4) not to take place, so the purpose of Amendments 157 and 158 is to ensure that they do.
I will speak also to Amendment 160. The intention there is to ensure that people who are representative of subscribers are consulted too. All that is presently proposed is that they are a possible group of consultees. Those, who, at the end of the day, will bear the impact of the Bill and the sanctions under this part of it, should be consulted ahead of, and certainly as well as, those who are merely conduits for the punishment which the Government intend.
Lord Howard of Rising: We on these Benches agree with the amendments concerning paragraphs (a) and (b). It would be quite wrong to proceed with an assessment of a technical measure without consultation on an assessment or how effective it would be. I must admit that I do not understand why paragraph (c) is there at all. The power to take initial steps is already in subsection (1), so it is not clear why it needs to be repeated in subsection (4).
Turning to the amendments of the noble Lord, Lord Whitty, and my noble friend Lord Lucas, we on these Benches agree with a requirement to consult groups representing subscribers and consumers. However, I am unclear on the value of consulting the judiciary. I worry about the provisions becoming a pseudo-penalty, which certainly would require the involvement of the judiciary. However, there would be an appeal, so presumably the body administering the code will be able to handle complaints about wrongful imposition of measures up to a certain point. The measures should not be used to punish. If the noble Lord intends the provisions to allow the imposition of a penalty, or the withdrawal of a service to such an extent that it would be seen as one under the law, the Government need to go back to square one and draft in the proper protections that such a step would require.
The Earl of Erroll: My Lords, I can see the purpose of the amendments; we should use "must" rather than "may", because we must consult everyone and leaving too much to discretion can be dangerous. Sadly, the noble Lord, Lord Whitty, does not appear to be here. I can see a possible point in consulting the judiciary, despite what the noble Lord just said, because copyright law is extremely complex, and it could well be that inadvertently the code is not realistic in terms of the actual law of copyright, particularly when we are dealing with it internationally. Some people who are serving up files for unlawful download will be using foreign-based servers within areas which come under the Berne convention. There may be a legal level to this which should be consulted. To ignore that could be unwise, so I can see good purpose in that. In general, I support the amendments; they are eminently sensible.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Young of Norwood Green): My Lords, Clause 10 allows the Secretary of State to require Ofcom to prepare in advance against the need for technical obligations, to require Ofcom to assess the need for technical obligations generally and the likely efficacy of particular technical obligations on particular types of networks, and to require Ofcom to develop a code of practice to underpin any such technical obligations.
It may well be desirable for those powers to be used one at a time rather than in parallel. The Secretary of State might want an assessment of whether any measure is needed and, if so, which is the right one before asking for a code to be drawn up. This would make sense since the detail of the code is likely to be heavily influenced by the nature of the measure. This suggests that it is not sensible to make all of paragraphs (a) to (c) a requirement in relation to every direction that the Secretary of State might make under new subsection (1) of new Section 124G of the Communications Act 2003 in Clause 10.
Imposing technical obligations is something a Secretary of State would decide only if he were sure it was the only way to deal with the problem of online copyright infringement and if the initial obligations have failed to deliver the expected results. I stress that because we are all committed to ensuring that the initial obligations
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The amendment also calls for the addition of "the judiciary" to the list of those to be consulted. Such a statutory obligation would be highly unusual and is unnecessary. I share the view of the noble Lord, Lord Howard of Rising, that it is also undesirable in this context.
Finally, on Amendment 160, I explained in relation to the previous amendment why I think this is unnecessary. I accept entirely the need for consultation with consumers and consumer groups before any technical obligations are imposed, but the Bill already provides for that. I think it was the noble Lord, Lord Howard, who asked why we need paragraph (c). We believe that paragraph 4 provides the necessary detail.
Lord Lucas: I shall speak to Amendment 166 as well. Amendment 161 tries to beef up paragraph (b). It looks at not just the efficacy of the technical measure-in other words whether it will bite-but also the proportionality and objective justification for it. It introduces something of the subscriber's point of view as well as considering the copyright owner's point of view that is in the current wording, to make sure that we are treating our citizens in a justified way. That is echoed in Amendment 166, which asks us to make sure that,
We have been over this track a bit and I hope that each time we revisit it we get closer to understanding what will really happen. I had a very helpful letter this morning from ACS:Law Solicitors which, combined with what the Ministers were saying on the last occasion we discussed this, leads me to a greater understanding of their reluctance to deal with the practices that
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We should think extremely carefully before we make it acceptable for mainstream copyright owners to pursue this sort of course because we have talked it through carefully and have sanctioned it in the Bill. This is not a comfortable or pleasant procedure for people. Thousands of people feel that they have been done in by ACS:Law Solicitors. They have been unjustly accused and are finding it extremely difficult to satisfy ACS:Law Solicitors that they are innocent. These things rarely seem to come to court. None the less, the process appears to be entirely within the recognised arrangements of the law, and there is as yet no sanction or judgment against the practice from the SRA or any other organisation. We must accept that tens of thousands of citizens are going through this experience at the moment, and that hundreds of thousands or a million or more citizens will do so once the Bill is passed. This is producing extreme worry and unhappiness because of the lack of ease in dealing with it.
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