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I turn to the other question in relation to regulation and to the question of ring-fencing. Personally, I would have preferred the more radical solution of complete separation. I realise the arguments about cost of capital, competition and so on but, after all, American banks did survive quite successfully for a long time under the Glass-Steagall arrangements. But when we come to the question of ring-fencing between the investment part of a bank and its retail part, I am not clear whether it is intended that the ring fence should have holes in it or whether there is to be a complete ban on capital flowing from one side of the ring fence to the other. There seems to be some discussion at the moment which suggests that the ring fence would not be as solid as perhaps some of us would wish it to be.
The other thing that is not clear about whether something is too big to fail is whether, following the establishment of the ring fence, the part of the bank concerned with investment banking, no matter how large, would be allowed to fail but the retail side would not. In other words, there would be an absolute guarantee that the retail part of a bank would be protected by the Government. If that is so, it raises very serious questions of moral hazard. The extent to which the retail banking section has not been devoid of the recent problems arising from risk-taking creates a real problem. Obviously, we will be much clearer about this when we see the White Paper and the pre-legislative scrutiny which takes place. But perhaps my noble friend would clarify precisely what is meant by ring-fencing in this context.
Lord Sassoon: My noble friend's first question was about whether this is twin peaks, triple peaks or whatever. I have always found that a somewhat stale way to analyse the issue because over the past decade constant comparisons were being made between single peaks, twin peaks and so on, so I am reluctant to be drawn into characterising what we are now proposing as any number of peaks. All I can say is that it is emphatically not a triple-peak solution in that the macroprudential and the micro in the PRA are going to be in one body in the Bank of England. So although characterising it as twin peaks is closer to the models that have been
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On the questions around separation and permeability of the ring-fence, the Government will be guided by the independent commission's final report. But it is also important to recognise what the ICB's interim report did and did not say. To put it simply, it certainly was not a division between retail and investment banking. The commission acknowledged that a balance has to be struck between imposing very high costs on an important sector and the degree of safety. The point of firewalling is not to eliminate all risk, but to minimise the risk and cost to the taxpayer should a bank fail. The ICB is now focused on these issues between now and September. The principal issues to be looked at by the Government and the Bank of England will be the powers to manage the collapse of any investment bank, were that to happen in the future. As I hope was clear from my honourable friend's Statement, one of the principles in establishing the ring-fence is to make sure that the taxpayer is not exposed on either side of it. Therefore, getting rid of the risk of moral hazard is at the centre of the construct that we are looking to put in place.
Lord Hollick: My Lords, I, too, welcome the Government's endorsement of the requirement for high-street banks to be better capitalised. However, I share the concerns of the noble Lord, Lord Higgins, about the efficacy and efficiency of ring-fencing, as opposed to total separation. As the Minister will know from his time in the City, banking groups are funded and the Treasury is run on a group basis. To separate the groups and deal with permeability will be extremely difficult. A legal separation would reduce, if not eliminate, the risk of inter-group contagion. It would also allow the risks of the high-street bank and the investment bank-or whatever the Minister chooses to call it-to be properly priced. This would benefit the ordinary consumer. The lower cost of borrowing that a better capitalised high-street bank paid could then be passed on to the borrower.
The second issue that arises on this is, again, a welcome commitment to apply this right across the banking industry. However, many of our banks are headquartered in other countries. Have the Government had any discussions with the Governments of, for instance, the United States and Spain? Do they share the Government's enthusiasm for this approach? Will the Government also ensure that the lead regulator-whether in the United States or in Spain-will follow the same path?
Lord Sassoon: My Lords, there are many questions wrapped up in all that. I am conscious that we have four minutes to go. I repeat myself, but we have set up the independent commission with a suitable group of experts and resourced with a secretariat that is now grappling with precisely these questions. Legal separation has, in the history of the US and Glass-Steagall, proved itself to be an incomplete answer to this. We have to find the best answer. We have set out the Government's perspective, which is to endorse the
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On the international side, one of the standards by which the Government will judge the solution and decide whether to endorse it is compatibility with the international rules. That is the minimum. That is not what the noble Lord went on to say. As to whether other people will come with us, all I can say is that there has been a high degree of interest in what the commission has come up with in its interim report. People around the world are studying it. We shall see in time whether they will follow it. All I know is that the eyes of the world are very much on the continuing work of the commission.
However, that is not a task for regulation; it is a task for supervision, which is not mentioned in the Statement and caused some confusion in earlier business on these matters. I shall not say this at any length but supervision is a separate process, which got slightly lost under the old system. We need to be careful that these are two separate things, which are complementary and sometimes overlap, but nevertheless are not the same. The text on that needs another look.
Lord Sassoon: I am grateful to my noble friend because this is a technical but very important area. He is completely right that there is a fundamental distinction between supervision and regulation and often texts can be loose on this. I hope that when he has a chance to read the White Paper he will see that there is extensive discussion of these areas. I refer him to the interesting remarks of the governor last night about the approach to supervision which he intends the Bank and the PRA under it to adopt in the new world, and that that should be a very different approach to supervision from what we have seen recently with the FSA. I take my noble friend's points to heart, but the short text of the announcement does not give the full flavour that lies behind it.
Lord Maples: I have a couple of quick points on the ring-fencing proposal. Does what the Chancellor said last night mean that we have finally ruled out the idea of a complete split between investment banking and commercial banking? Secondly, does the Minister agree that for ring-fencing to work, the ring-fenced commercial or high-street bank will need a strong degree of independence on its board of directors to enable it to stand up to the banking group of which it is a part?
Thirdly, the Minister's point about how many holes there are or how permeable the ring-fence is is important because presumably the purpose of the ring-fencing is
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Lord Sassoon: My noble friend makes some important points, which the independent commission has in the forefront of its thinking to resolve over the next few months. It is not that we have ruled out everything but that we have set up an independent commission. It came up with the ring-fencing proposal in its interim report and that is what my right honourable friend the Chancellor has endorsed, subject to the caveats included in the Statement. My noble friend's points about how this is worked out in detail are some of the absolute correct ones.
Baroness Hamwee: This amendment takes us to the issues relating to Parliament Square. I start with an apology. Like many other noble Lords, I had thought that we would be a little further advanced by this time and I am committed to a speaking engagement, fortunately as near as Portcullis House. However, it means that I will not be here for the whole of the debate on this part of the Bill, about which I am extremely sad. The future of Parliament Square is an issue dear to my heart. However, I am delighted to see the repeal of what I have always thought of as offensive provisions in the Serious Organised Crime and Police Act.
I have no need to rehearse at length why it is so important that demonstrations in the vicinity of Parliament should not be blocked. Indeed, I think that they should be facilitated. I was heartened, too, by a discussion that I had with the Hansard Society recently about the work that it is doing to promote better co-ordination of the various institutions around Parliament Square that are part of our democracy.
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Maybe it is important to rehearse the importance of the rights to peaceful protest and assembly, which are integral to our democracy. Any interference in them must be proportionate as it is a matter of human rights. The Government are held to account through a number of mechanisms. Making views clear to both government and Parliament, whose job is partly to hold government to account, is integral to that. This is all wrapped up with the right of free speech. I have said to your Lordships before that it does us as parliamentarians no harm to be confronted, in a physically non-confrontational way, with other people's views. Sometimes those views are expressed vocally, though we may not hear so much of that at this end of the building. We tend to hear more noise from Old Palace Yard, which I think is outside the area covered by these provisions. The loudest is often the hymn-singing that is sometimes organised there by religious groups. As I said, it is not appropriate to re-enact the provisions for a narrower area, nor to give aesthetic considerations -tidying up the square-more weight than considerations based on democracy.
What is there about Parliament Square that needs more protection than is available through the Public Order Act 1986? That is at the heart of the questions in this group and on this part of the Bill. The Joint Committee on Human Rights report said that,
I found it harder to detect justification in the Explanatory Notes. That is why I am opposing the question that these other clauses, beside Clause 142, should stand part of the Bill. That will save others from perhaps wondering in my absence why I am opposing that the clauses stand part. I know that my noble friend Lady Miller of Chilthorne Domer, who will move the amendments that I cannot, and who has a much longer track record of standing up for these matters than I do, will speak to them. I will therefore also be opposing that some of the other clauses stand part.
This may not be retrospective in a technical sense but I wonder what it means. Section 14 of the 1986 Act provides that a police officer can only give directions or impose conditions prospectively. I have been wondering whether Clause 142(2) means that the directions bite only from when they are given. This is of course relevant to whether there is an offence as regards the past, or whether the offence is committed maybe in respect of a continuing activity but only from the point of a direction that is not obeyed. I beg to move.
Lord Campbell-Savours: My Lords, I shall intervene for a few moments. We are often told that scrutiny in the Lords is better than that in the Commons, but this is a section of the Bill that I would have liked to have talked on, under a number of amendments, and due to pressure of time and the fact that we will be going late this evening we will not have the opportunity. This section of the Bill will not be subject to the level of scrutiny that I believe it deserves.
Baroness Miller of Chilthorne Domer: My Lords, I follow that by saying that this is a particularly important section of the Bill. My noble friend Lady Hamwee laid out a little bit of the history of this legislation. Last time, with the SOCPA provisions, which are now being repealed, Parliament got it very wrong-although it got it wrong in a panic, as a reaction to terrorism. There are still things in the Bill that are deeply worrying, which is why it merits scrutiny. Having said that, I welcome the fact that the Government are repealing the SOCPA clauses.
In speaking to Amendment 244ZZA, I shall give an example of one thing that should really worry us. My amendment suggests that we should remove from the Bill the words "or is about to". If somebody is doing a prohibited activity, it is quite plain that the police can give them a direction to stop them doing it. However, how will the police know that the person is about to do a prohibited activity? Is the policeman a mind reader? Can he or she guess what that person is about to do? There is something slightly more worrying behind these words. It disguises what we now have in this country-that is, two classes of citizen. The vast majority of the country do not fall into this class, but there is a second bunch of people who are classed as domestic extremists. Some of them may be in your Lordships' House, because to be a domestic extremist, for which there is no legal definition, you simply have to be somebody whom the police think has regularly gone on protests. I do not know the rest of the criteria that the police use to judge, and I do not believe that the Home Office is very aware of them, because when I asked a series of Written Questions about this to the Minister's predecessor I was told that there is no legal definition. There is a database, and people can find out if they are on the database if they apply under the Freedom of Information Act. However, of course they would not know to apply, because most people would not suspect that they were on it.
This year we have also had the issue of the somewhat out-of-control undercover surveillance of activists. I am very glad that HMIC is currently carrying out a
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In addition, the Metropolitan police force has just acquired some suspect-mapping software called Geotime, which can take account of the activity done by domestic extremists in their everyday lives. For example, it can follow social networking when they use their sites, as well their mobile use, cash withdrawals and sat-nav use. The police can build up thus an entire picture of somebody who is not a criminal or somebody who has been convicted of anything but someone who is classed as a domestic extremist, for which, as I say, there is no legal definition. It is quite worrying. Those people, the domestic extremists, have not necessarily done anything criminal-nothing except to be known protesters and activists. In other words, they are people who might do something. That is what worries me about the wording,
What particularly concerns me is that if that class of person appears in Parliament Square, they will be given a direction not even to put their blanket down and not to do any of the things that could be classed as a prohibited activity and will be subject to a certain degree of judgment by the police. Why is this particularly important? It is important for all the reasons that my noble friend gave in introducing this group of amendments: Parliament Square is an iconic place in which to protest and to demonstrate. More than that, it is an extremely iconic place internationally.
At a time when the rest of the world is seeing protests put down in incredibly violent ways, it is incumbent on us to make sure that, being a flagship of democracy, we can demonstrate freely-and that we, as the legislature, demonstrate that we take incredibly seriously the rights and freedoms of our citizens. I do not want to see in the Bill little weasel words such as,
Lord Desai: My Lords, I spoke on this section of the Bill at Second Reading and I very much support the amendment of the noble Baroness, Lady Hamwee. If we have subsection (1) of Clause 142 in place, which re-establishes the Public Order Act 1986 as the ruling legislation, the rest of that clause/section is completely unnecessary. We can omit all that. If we have the 1986 Act, all subsequent legislation is not required, including Clause 143 and the rest of the provisions in this section.
Lord Rosser: My Lords, I have an amendment in this group but we agree with the repeal of the provisions in the Serious Organised Crime and Police Act 2005 relating to demonstrations in the vicinity of Parliament. We also agree with the need for further proposals and for the use of the 1986 Public Order Act. The 2005 Act created a new offence of demonstrating without authorisation in what is described as a designated area, which was defined by order. That designated
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However, that Act had unacceptable and unintended consequences on the right of some to protest and it soon raised concerns that the Act had not, in reality, struck the correct balance between the right to protest and the rights of people to go about their everyday business and for them to enjoy Parliament Square. A proposal to repeal the provisions of the 2005 Act was included in the Constitutional Reform and Governance Bill. That proposal fell in the wash-up at the 2010 general election.
In looking at the Government's proposals we have some questions to raise, simply to test whether they are likely to achieve their objectives. It would certainly be helpful if the Minister could define the problem that the Government feel that their proposals will address, and to define the harm that the Government are trying to deal with. The Government's proposals are, in many ways, similar to the provisions of the Serious Organised Crime and Police Act but they apply to a much smaller area, namely Parliament Square. How did the Government decide that Parliament Square should be the limit of the area to which their proposals should relate? Although he is not in his place, the noble Lord, Lord Blencathra, had amendments proposing, as I understand it, to include Abingdon Green. How would the situation be addressed if those protesting-the permanence of existing protests is an issue-moved just outside the area of Parliament Square?
Do all the parties directly involved support the Government's proposals, including the Greater London Authority, Westminster City Council, the Metropolitan Police and indeed the House authorities here? Are there any areas of disagreement over the scope or the practicality of the proposals?
We recognise that this is not an easy issue to resolve and that at the end of the day it will not just be about what is or is not in the Bill or any associated documentation. It is also about the degree of common sense-which, hopefully, will be considerable-that will be applied by all concerned in implementing the powers in the Bill.
Lord Wallace of Saltaire: My Lords, with nine clauses to deal with, worrying about a very small traffic island seems on the face of it to be a bit excessive, but I recognise that there is concern about the current situation in Parliament Square, the overkill that SOCPA applied to it and the question of what we put in place as we remove SOCPA. On the problem that we are trying to address and the harm that we are trying to remove, I say to the noble Lord, Lord Rosser, that the democracy encampment actually produced a considerable amount of harm to Parliament Square Garden. The garden, which should be there for the enjoyment of all, is still fenced off, as the noble Lord well knows, and not only tents but some semi-permanent structures now obstruct the pavement.
I also recognise that this is part of a much wider discussion that we need to have, not just on the Bill but about the future of Parliament Square and of this part of Westminster as a whole. We had a useful debate on
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Lord Desai: Is there not anxiety on the part of the demonstrators that if they do not have permanent structures they will not be able to come back the next day and demonstrate? They are worried that if they demonstrate only during the day and then go home, the next day the police will say, "You can't come here". They are probably trying, in a clumsy way, to establish a right. I quite agree that these structures are ugly but that right is a crucial one to protect, and we should not worry too much about the structures.
Lord Wallace of Saltaire: My Lords, there is no evidence for what the noble Lord has just suggested. We are talking about proportionality in a whole range of different ways here. Parliament Square, Old Palace Yard and the area around them, as some noble Lords were saying on Friday, ought to be a great democratic space to be enjoyed by a large number of people, not just those who come to visit Parliament or those who wish to make their views well known-loudly known-but also tourists and those substantial numbers of people who pass through Parliament Square every day on their way to and from work. It is a transient population that is obstructed by those who wish to be here permanently. Some of those structures are semi-permanent. I think that the noble Lord will agree that if the Aldwych-to take where he and I used to work as an example-had a similarly permanent encampment, there would be real problems of obstruction of the footway and so on.
The question that we are dealing with is: how best to arrange Parliament Square for the enjoyment, and the presence, of the maximum number of people under shared rules for all who come. This is a very large area. The intention of this part of the Bill is to give much greater clarity to protestors, public and the police as to what is and is not acceptable in Parliament Square. As I said on Friday, overnight protests and vigils are clearly one sort of acceptable behaviour. Being there for a year at a time-or, in the case of Brian Haw, several years-is a different sort of presence. It begins to obstruct the rights of others. I am sure that the noble Lord is familiar with John Stuart Mill and On Liberty, and the question of how one's liberty has not to obstruct the rights of others. The maximum number of people in the democracy encampment was, I think, nearly 150. Brian Haw's group has always been a mere handful. So we are trading off different rights. That is the purpose of this place.
I therefore say to the noble Lord, Lord Campbell-Savours, that scrutiny of this is taking place in a wider context, not simply today. We discussed this on Friday and there is, indeed, another Private Member's Bill. This will continue to be a large set of issues.
The noble Baroness, Lady Miller, asked whether the policeman was a mind-reader. No, certainly not. Before anyone can commit an offence under these
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The noble Baroness talks about fears of domestic extremists. I do not particularly want to go down that road beyond saying that I recall that when I once turned up to speak to the Campaign for the Accountability of US Bases in Britain at RAF Menwith Hill, it was remarkable how quickly the MoD policeman appeared to recognise who I was-my name and everything else. Perhaps I am on the list, too. We do not need to go too far into that for the moment.
These amendments rightly test the replacement for SOCPA. The Government's view is that getting rid of SOCPA and replacing it with measures that existed before-as far as demonstrators are concerned, the previously operating Public Order Acts-is the right response. There is a trade-off between different users, as I have already said. However, there is a clear consensus on all sides of this Chamber after five years of debate that Parliament Square should be fully developed as a democratic space and that we should be discussing with the Palace authorities, the Abbey, the Supreme Court and others how to use it better. That discussion is rather wider than the Bill goes and needs to be continued elsewhere.
The question of Abingdon Green was raised briefly. There are particular problems because Abingdon Green is private, not public, property. Noble Lords will be aware of the many subtleties of who is directly responsible for which bit of the various facilities around here. There are risks of hybridity if we apply this Bill to Abingdon Green. However, we understand the practical challenges in terms of applying these various remedies. The Government will therefore additionally discuss with the House authorities the benefits of moving an amendment on Report to make provision for a power of seizure to be attached to Royal Parks regulations, which apply to Abingdon Green, to support the position that we have taken for effective enforcement of GLA and Westminster City Council by-laws.
Lord Campbell-Savours: Suppose that there is a big demonstration in London with a couple of thousand people on Whitehall all marching down towards Parliament Square carrying sleeping bags. Suppose that it looks to a police officer that they may well want to spend the night somewhere in the vicinity of Parliament. It does not mean that they are going to do it every day, or every week or whatever; they are not going to put up tents or anything. What would happen in those circumstances? Would the police simply ignore it? Or would they somehow find some excuse under the proposed legislation to say, "We are warning you, you cannot do it". Then, if they breach that, an argument breaks out on the streets between the police and the demonstrators.
Lord Wallace of Saltaire: My Lords, the noble Lord is enjoying asking a hypothetical question. As we know, the police operate through discretion and by
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We are working with Westminster City Council and the Greater London Authority to ensure that the relevant by-laws are strengthened to deal with disruptive activity in the wider area as well as in the central traffic island-as I call it-of Parliament Square itself. Our approach is aimed at targeting specific problems in a small area of Parliament Square and empowering the local authority to take action by giving it the ability to enforce relevant by-laws more effectively. Having reassured the Committee on that, and having encouraged it to continue the wider debate which we started on Friday about the future of Parliament Square, Old Palace Yard and the environs of this world heritage site, I hope that I can persuade the noble Baroness to withdraw the amendment.
Baroness Hamwee: My Lords, I am grateful to my noble friend and to the noble Lord, Lord Desai, for their support. I keep coming back to my question about what is so special about Parliament Square, apart from the fact that we love it. Noble Lords may have noticed that although I oppose a great deal of the Bill, the encampment is a different matter. I am not entirely encouraged to hear that more by-laws may be applied, but there we go.
Lord Wallace of Saltaire: My Lords, I apologise. That is very much a transitional arrangement to ensure that those who are already encamped there when the regulations are changed are not enabled to say that they do not apply to them. As I say, this is a transitional arrangement.
Baroness Hamwee: My Lords, I understand that but since they will be committing an offence it may well be relevant to how long that offence has been committed for. If a direction is given on a Wednesday and they move the following Wednesday, they have committed an offence for a week, but they may have committed an offence for a year and a week if this measure is not technically retrospective, as I say. In terms of sanction, I would have thought that might be very relevant.
Baroness Hamwee: My Lords, I beg to move Amendment 244ZZB. I suppose for Hansard I should also say that I am also speaking to Amendments 244ZA, 244ZAC, 244ZCE, 244ZCF, 244ZDZA, 244ZDZB, 244ZEA, 244ZEB, 244ZEC, 244ZED, 244ZEE, 244ZEF, 244ZF, 244ZG and will oppose the Question that Clause 149 stand part.
The first half of the amendments in this group would replace "constable" with "senior police officer" in Clauses 144, 145 and 146. Under Section 12 of the Public Order Act a "senior police officer" means the most senior in rank at the scene. I had wondered whether a constable was referred to because of the seizure powers that would be likely to be carried out in many instances by a relatively junior officer. However, the definition in my Amendment 244ZAC answers the point. The Public Order Act got it right by stating that the officer should be the most senior in rank at the scene. It is appropriate to ask the Government to justify why they have extended that right, only in the case of Parliament Square, to warranted officers below the most senior in rank at the scene.
What worries me more are the powers to be extended beyond warranted officers; those powers are the subject of the remainder of the amendments in the group. Powers are to be given by the Bill to authorised officers, who will include employees of the GLA and Westminster City Council. Assistant Commissioner Lynne Owens of the Metropolitan Police gave evidence to the Public Bill Committee in the Commons to the effect that a broad discretionary power, vaguely drafted, is very difficult for a police officer to exercise in the middle of a protest. However, police officers have training and experience that are probably not available to authorised officers-council employees. I know that the duties of some council employees have been extended to some public order matters. There are wardens in Trafalgar Square, but their experience and duties are rather different from those expected under the Bill.
The Bill grants powers of direction and seizure to an authorised officer, although, as a result of an amendment during proceedings on the Bill before it
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This was something on which the Joint Committee on Human Rights made a number of comments, referring to the fact that the Minister had explained that the Government thought it would be bureaucratic and time-consuming to limit the direction-making power to police officers. I am well aware of how much work the Committee has to get through tonight, but I nevertheless want to read the JCHR's recommendation into the record. At paragraph 1.22 of the report the committee said:
"We welcome the Minister's reassurance that these powers would be accompanied by guidance dealing with the appropriate exercise of discretion, identification and, in particular, with the reasonable use of force. However, no provision for these important safeguards is made on the face of the Bill. We regret the Government's reluctance to accept the need for further definition or statutory guidance. In the absence of statutory safeguards, we do not consider that the Government has provided adequate justification for the extension of this broad discretion to use such powers to local authority employees or contractors".
"We consider that the power to seize property is a power of the type which should generally be reserved to police personnel. Without further justification for seizure powers to extend to the local authority, we consider that this power should be limited to police personnel".
Baroness Miller of Chilthorne Domer: Briefly, I agree heartily with my noble friend. It is not just a question of the seniority of the police officer, or whether they are warranted. My noble friend made some important points. Every inquiry into difficulties with protests recently has found that training is the issue. I hope that the Minister will be able to tell the House what provisions are in place under this Government for better training. The other place concluded after G20 that never again must untrained officers be placed in the front line of public protest. Nowhere is more front-line than Parliament Square. Inadequate training in the law, including human rights and public order powers, and a lack of clarity about the role and function of the forward intelligence teams, who are very much on the ground in the case of bigger public demonstrations, have been issues.
I realise that since some of those comments were made, we have had the appointment of Sir Hugh Orde, who has brought some valuable experience in human rights training from Northern Ireland, which was recognised for integrating human rights training into general training. In human rights training, it is so important to get the balance between freedom of expression and that spilling over into something else.
The previous Government rather sloped their shoulders with regard to the Home Office giving guidance on what training should be given and said that it was a matter for ACPO. Does the Home Office feel more strongly now that guidance on training, particularly in this regard, is a matter for the Home Office?
Lord Rosser: My Lords, I, too, will be brief. I have one amendment in the group. It relates to Clause 149 and deals with a very similar issue to that raised by the noble Baroness, Lady Hamwee: the definition given of "authorised officer". The clause states that it can be,
All I want to add is that there are concerns, which have been eloquently expressed, about the powers that may be operated by someone other than a warranted police officer. I appreciate that the purpose of the amendments tabled by the noble Baroness, Lady Hamwee, is to ensure that it is a senior police officer.
It will be very helpful in probing how the Government see the role of people other than warranted police officers under this part of the Bill, if the Minister could say what those authorised officers, as defined under the Bill, will be expected to do. What will an authorised officer not to be able to do that a warranted police officer could do under the Bill?
Will the role of the authorised officers include policing demonstrations? How will people know that they are authorised officers under the terms of the Bill, since presumably they are not going to be dressed like police officers? Will it be obvious to all concerned? The Minister will know from evidence given in relation to this Bill that a view has been expressed in police circles that even clearly identifiable police officers may at times have difficulty in having their decisions and instructions accepted by those who are taking part in demonstrations-certainly in the heat of the moment. Surely that becomes even more difficult, depending on what the Minister has to say about the role of authorised officers, in relation to somebody who is not a police officer. Who will determine the suitability of these authorised officers for the role envisaged for them in this Bill, whatever that role may be?
I hope that the Minister will be able to clarify the situation and perhaps put minds at rest to some extent by what he has to say about the role and responsibilities he expects for these authorised officers who are not warranted police officers.
Lord Campbell-Savours: My Lords, I intervene with another rather silly and naive question. I ask these questions because previously sometimes the most ludicrous things have happened and we find an article in the Evening Standard about action taken during one of these demonstrations which none of us comprehends. I want to ask a very simple question. Clause 146(1) says,
What about a deckchair? If a demonstrator turned up with a deckchair, who will decide whether the chair is for sitting upon or for sleeping upon? It is in those silly little areas that stupid decisions are taken that can lead to trouble in crowds, and subsequently to violence. It can be the small things that trigger a demonstration. This is why this whole area of the Bill should have been dealt with in far greater detail than it has been, and I simply ask what might appear a naive question but may well turn into an issue at some stage.
Baroness Miller of Chilthorne Domer: I have one illustration to add to the point that the noble Lord, Lord Campbell-Savours, made so well. Who is to say that that person with the deckchair is even on the demonstration? One of the issues under the-happily to be repealed-SOCA provisions was that a person turning up in a T-shirt with a slogan saying "down with the war" might be taken to be on a demonstration but might be taken to be walking down the road in a T-shirt. The same thing would apply to things like deckchairs and blankets. Is a poncho something for sleeping in? It is a sort of blanket but your head can go through it. There are all sorts of issues that the noble Lord, Lord Campbell-Savours, is correct to raise that are going to be an immense matter for judgment.
Baroness Browning: My Lords, I will pick up on that last point about seizure before I begin to address the amendments. Police officers have different seizure powers that are largely based on their need to prevent crime or to seize evidence for a crime. People have mentioned deckchairs and other such items. Depending on the circumstances, it would be up to the police officer concerned to exercise their judgment about whether the item they were seizing was involved in either preventing crime or was evidence that might be used in a later prosecution.
Amendment 244ZZB is premised on ensuring that only the most senior officer present at a scene can issue a direction to cease doing a prohibited activity. The Government fully appreciate the likely challenge to these provisions. We understand that the intention behind the amendment is to ensure that directions are properly issued by escalating authority to the senior officer present at the scene. On a point of principle, the Government are confident that police constables, regardless of rank, can issue appropriate directions. The Government support the return of discretion to police professionals.
On a point of operational practicality, the package of reforms is designed to support early and proportionate interventions by the police to prevent an escalation of prohibited activities. However, the amendment would hinder that. Amendments conferring powers only on the senior officer present at the scene would have an adverse impact on practical enforcement on the ground, and on that basis I urge the noble Baroness to withdraw the amendment.
The same arguments extend to Amendment 244ZA and other amendments in a similar vein. These amendments would remove powers from authorised officers of the Greater London Authority and Westminster City Council, about which I shall say more in a moment. The effectiveness of the new legal framework in Part 3
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Clearly, members of the public must be able to identify authorised officers, understand what powers they have and their authority to use them, and what avenues of complaint are open to them. Greater London Authority heritage wardens carry identification and wear a uniform, as do authorised officers from Westminster City Council. We understand from both the GLA and Westminster City Council that to date there have been no issues with authorised officers' identification for the purposes of implementing by-laws. In addition, we are working with the relevant authorities to develop enforcement protocols and guidance on all these issues. I say to my noble friend Lady Miller of Chilthorne Domer that the Home Office has undertaken to provide the guidance and operation for this part of the Bill.
The Government recognise the concerns generated by the powers that are available to authorised officers. That is why, as noble Lords may know, we have listened to concerns raised in the other place and have decided to remove the power to use reasonable force from authorised officers. However, the amendments would take away the powers of authorised officers to deal with even the most routine cases. I urge noble Lords not to press their amendments, which would make the provision in Part 3 unworkable. I hope they will feel that I have given them sufficient information to be more confident about how we intend to proceed with this part of the Bill.
Baroness Hamwee: My Lords, as has been said, seizure of items, as well as directions, will be very much a matter for judgment. My noble friend referred to training-an issue which was highlighted following past experience. We often talk about lessons learnt but do we ever actually learn the lessons or just talk about learning them? Exactly the same applies to the example given by the noble Lord, Lord Campbell-Savours-it will be a matter for judgment. Overenthusiastic authorised officers may well escalate a problem rather than calm it down. The Minister refers to practical problems regarding the senior officer on the scene. I think that the issuing of directions will be less of an issue than one-to-one encounters. Therefore, again, I am not wholly persuaded.
The GLA and Westminster say that there have been no problems with identification as regards their own officers in the past, but I wonder how much that has ever really been tested. I hear what the Minister says, so at this point I beg leave to withdraw the amendment.
Baroness Miller of Chilthorne Domer: My Lords, the Committee will have noticed that I confused my ZZAAs before, which is why I moved that amendment earlier, for which I apologise. It is confusing when they are grouped like this.
With the amendments in the name of my noble friend we move to whether the maximum fines for a summary conviction for an offence are proportionate under Clause 144 for failure to comply with the direction. We feel that it would be more proportionate to move from level 5 to level 3, which the JCHR comments on. It says that the Minister may wish to impose an effective deterrent, and that,
Amendments 244ZCG and 244ZCH would reduce from 90 days to 14 days the period in which an activity is prohibited. Surely 90 days is really very extreme. Do we imagine that people will hang around for 14 days and try to repeat their activity? That is possible; it might be taken as part of the freedom to try your demonstration again. But similarly, the Joint Committee on Human Rights asks the Government for an explanation as to,
Under the provisions of SOCPA part of the enormous offence caused by the clauses in that Bill was to do with banning individuals from an area. The Government need to proceed with extreme caution in this case. If individuals feel very strongly about something that is about to happen-I could quote, for example, the country going to war-of course, individuals will want to protest again and again. Is it really reasonable to prevent them doing so for three months just because they lay down to sleep although they were directed not to do so and contravened the Act? In any case, if they feel that strongly, why should they not do it again? I am not condoning people undertaking criminal activity but in this case, there is a very fine line between taking all individuals who protested and contravened something and banning them from appearing anywhere outside Parliament for 90 days. I do not feel that that is proportionate and I beg to move.
Lord Rosser: My Lords, I hope that I have the right group of amendments and will not start talking to something that I am not meant to be talking to. I will
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Lord Wallace of Saltaire: My Lords, I will say two things before I answer the particular points. First, we will come back to Parliament Square on Report. The noble Lord, Lord Blencathra, was unable to be here today and asked to withdraw his amendments and bring them back on Report. I very much hope that we will take further the whole issue of what we should do about the environs of Parliament. I say to the noble Lord, Lord Campbell-Savours, that I have been thinking about when I first became conscious of how special this area is. It was when I was standing on top of the Henry VII chapel at the 1951 State Opening of Parliament. I was fascinated by the speed with which the Westminster City Council rubbish collectors picked up the horse manure as the Horse Guards rode past. My views on what is important have changed a little since then. The following year I sang in Westminster Hall at the lying in state of King George VI, and I have been involved in this area ever since. On Saturday night I will take part in a singing tour of the abbey, so I am probably among those who care most about the integrity of the area.
Secondly, in answer to my noble friend Lady Hamwee, I have the answer from the Box on Clause 142(2). If the provisions come into force on 1 May, for example, directions can be issued from 1 May onwards in relation to activity being engaged in from then, but they cannot include any activity that took place before then: there is no question of retrospectivity. Clause 142(2) ensures that ongoing encampments can be subject to directions once the provisions are commenced. I hope that that answers the point.
I turn to the points made by my noble friend Lady Miller. The Government note that the issues raised are similar to those raised by the Joint Committee on Human Rights. The issue is the appropriate maximum level of fine and whether it is commensurate with the potential damage and harms caused by the prohibited activities. Under the provisions, an individual commits an offence only when they fail to comply with a prior direction that provides an opportunity for them to desist from an activity before committing an offence. While the level of fine is higher than for some other comparable offences, this is balanced by the opportunity to desist from an activity before any criminal liability
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My noble friend also raised the question of how one measures the strength of protest. Again, we have to balance the strength of protest that a very small number of people wish to assist in against access for a very large number of protestors. I suspect that my noble friend was, as I was, on the demonstration against the Iraq war. We spent a very long time marching-actually, shuffling because there were so many people there-along the Embankment, through Parliament Square and down Whitehall. I never got to Hyde Park. There were 2 million of us. If there had been a small number of people encamped in our path, we would not have been able to get even as far as we did. One has to think about the right to protest in a balanced way. Strength of protest there was expressed by the number of people, not by the fact that any of us wanted to stay overnight and camp for the next six weeks in Hyde Park or anywhere else.
On the other amendment, the Government think that a maximum of 90 days strikes the right balance. Without any limit it would, for the person directed not to start a prohibited activity, be unclear and uncertain at what point a direction ceased to apply. With the limit of 14 days, we could, with some persistent resident protestors, so to speak, create a burden requiring unduly frequent renewal. Ninety days has been applied in a number of other areas for these sorts of orders.
Subsections (1) and (2) of this clause provide that the direction to stop a prohibited activity may include a direction that the person does not start doing that activity again and that the direction continues in force for a period of time specified by the constable or authorised officer giving the direction.
Then we come to the use of "varied" in Clause 145(6)(c). We thought it fair to give officers the ability to amend a direction given to enable them to deal with changing operational circumstances. This would mean the officer would be able to change the duration of the direction or to reinforce the direction taking account of changing circumstances. This amendment would curtail the rights of officers and reduce their ability to respond proportionately to changing circumstances, and we are all familiar with how difficult it can be to do so in large demonstrations.
I am not sure whether the noble Lord, Lord Rosser, formally moved the amendment tabled in the name of the noble Lord, Lord Dubs, but our sense on the amendment is that he was providing detailed guidance of the sort that should not be in the Bill but which should be provided. I think I will need to write to the noble Lord about exactly which parts of these clauses will be subject to further guidance, but I promise that I will write.
Lord Anderson of Swansea: When the Government look at issuing detailed guidance, I hope they will not neglect the concern of my noble friend Lord Dubs about the use of amplifying equipment. I recall that
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Lord Wallace of Saltaire: My Lords, we will be coming on to that. I know that there are different, but very strongly held, opinions on amplifying equipment. Westminster City Council replied that by all their measures traffic noise was more important than the amplifying equipment. I think my colleague will be coming on to that on the next amendment.
Baroness Miller of Chilthorne Domer: My Lords, on behalf of my noble friend I thank the Minister for his reply on the retrospective aspect of this matter. I am sure that she will be as reassured as I am by that. I thank him for his explanation on why the penalty is as it is. I still wonder whether 90 days is rather heavy-handed. We will want to come back to whether police officers should be able to vary their guidance or their judgment of a situation on Report.
Around the House, we are in agreement that peaceful protest is a good thing and violent protest is not. On 28 March, we had a good example. At the Fortnum & Mason peaceful protest, 138 people were charged. Of several dozen violent protesters only 11 were charged. Somewhere there the police did not get their judgment right. I am grateful that my noble friend the Minister has had such broad experience of protests-going on them and now from the Dispatch Box. I am sure that he will be able to weave a careful path through this very knotty issue. In the mean time, I beg leave to withdraw the amendment.
Baroness Miller of Chilthorne Domer: My Lords, this group of amendments moves us on to amplified noise, which was referred to a moment ago. The Bill prevents all use of noise amplification equipment without prior authorisation, which rather returns us to the situation under the SOCPA provisions where you had to have prior authorisation for a demonstration. Following representations from Members of the other place and from this House, it is understandable that the Government
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The Bill gives a large amount of discretion to the police as regards reasonableness, on matters such as whether a person is about to turn up the volume so that people around are likely to be able to hear it. That is very theoretical and it will make the life of the police more difficult if they have to make that sort of judgment. However, there is clearly a judgment to be made here. People have a right to go about their business in the square, whether they are tourists or Londoners, and they should not have to hear an incredible amount of noise-although the traffic is probably still the noisiest thing. Our amendments probe whether there should be an overall prohibition on amplification and whether the restriction should be so broad. I beg to move.
Lord Rosser: Perhaps I may raise one point. My memory may have failed, in which case I am sure it will be pointed out to me. In the proceedings in the other place, some surprise was expressed when the Minister said that a loud radio would be regarded as amplified noise equipment. Is the Minister able to say any more about the definition of amplified noise equipment? I appreciate that it is dealt with in Clause 144(4), but if someone came along with a radio, some of which can be pretty loud, and played it, would that be regarded as being amplified noise equipment or not?
Baroness Browning: My Lords, in responding to Amendment 244ZB and its linked amendments, it is important to re-emphasise why the Government are bringing forward this package of reforms. Parliament Square is a World Heritage Site surrounded, as we know, by important historic buildings such as Westminster Abbey. Its location opposite the Houses of Parliament makes it a focus for protests, and rightly so. This means that we need to balance the competing and legitimate needs of members of the public who come to the area as protestors and of Members of Parliament and others who need to be able to carry out their daily work and enjoy the space as visitors. This extends to the use of amplified noise equipment as much as to encampments.
However, the Government recognise that the use of loudhailers is linked to freedom of expression in a way that erecting a tent is not. The package of reforms accordingly puts lesser restrictions on the use of loudspeakers than on the erection of tents. It does this by putting in place a proportionate authorisation scheme which balances competing rights, so using a loudhailer is a prohibited activity only if it has not been authorised. The authorisation regime set out in Clause 148 applies to a much smaller area than the SOCPA provisions which the Government are repealing. This is in line
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Does that mean that there will be a control on equipment in terms of the channel output of the equipment being used? It is quite a technical question, but I would have thought that some kind of estimate must be made of the channel output of the equipment. I cannot see any other way of determining what kind of equipment could be authorised.
Baroness Browning: I do not know if I am going to answer the noble Lord in as much detail as he would like. There are already noise regulations which, for example, would deal with other types of equipment such as radios. The noble Lord is indicating from a sedentary position that that is different. Perhaps I may write to him on the point.
We understand that the use of a loudhailer is intrinsic to the right to protest and being able to communicate one's message, but we consider that some restrictions along the lines proposed in these clauses and elsewhere in Part 3 are required in order to ensure that the rights and freedoms of others are adequately protected and balanced with the rights of protestors. We have no wish to prevent protest around Parliament, and I would hope that the other provisions in Part 3, namely the repeal of SOCPA, show clearly our commitment to restoring rights to protest.
As I have made clear during the debate, the provisions in Part 3 are about ensuring that individuals do not usurp the rights of many others. Therefore it does not seem disproportionate for responsible authorities to be able to place limits on the duration of the use of a loudhailer. The details of this authorisation scheme are clearly set out in the Bill to ensure that it is clear and accessible to all. I urge noble Lords not to press their amendments.
Lord Campbell-Savours: I have a further question. Sometimes when we come in by St Stephen's Entrance, 200 or 300 people might be meeting on the other side of the road where there is a space. Someone with a loudhailer will be standing there. What control on them will exist? Will they be free to use that loudhailer, or is that a regulated area?
Baroness Browning: They would be free to use it, but subject to authorisation, which at the moment they do not have. I am coming to the question of
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Baroness Browning: You can still hear it from there. I am not saying that that is where the loudhailer is; I am saying that you can hear it from there. You cannot hear what is being said; you just hear a shriek. As I have said, we are not trying to prevent protestors using a loudhailer but we want it to be proportionate in how it impacts on other people.
I shall just go through the regulations on applications. Twenty-one days is the period currently used by the GLA and Westminster to consider applications for loudhailers under local by-law provisions and Section 137 of SOCPA. Six days would be too short a period and would not give local authorities sufficient time to consult others. We are talking about a very limited area in which authorisation to use amplified noise equipment is needed. The authorisation scheme is there to protect competing interests in the limited space. Therefore, I urge the noble Baroness not to press her amendment.
I come to the court and the distinct issue of limiting its ability, on conviction, to make an order requiring the convicted person not to enter the controlled area of Parliament Square by imposing a time limit of no more than seven days. The Government's provisions leave the length of time entirely to the court to determine, in line with the circumstances of each case. This is wholly appropriate and would allow the courts to deal with determined individuals who might be resolute in simply coming back after seven days. I hope noble Lords will understand that we believe we have got the proportionality right here. I will write to the noble Lord on his more detailed technical question about different types of equipment.
Baroness Miller of Chilthorne Domer: I thank my noble friend the Minister for her reply. She has certainly laid out the Government's thinking very clearly. It is still possible to see one or two difficulties. For example, if you wanted to use a loudhailer at the last minute because you had only just decided to march on a particular issue, you would not have 21 days in which to apply to do so. In that case, would you be in contravention of what is in the Bill? There may be some other details that we shall want to come back to on Report, but we now have a clear understanding of where the Government are coming from. I beg leave to withdraw the amendment.
(a) all of the bodies which own or have responsibility for the controlled area of Parliament Square, and
(b) the Metropolitan police force.
Lord Marlesford: My Lords, I am putting to the Government a rather simpler method of dealing with the whole problem. It is a gentler method. It is something that I have given a lot of thought to over a very long time. Indeed, I have a Private Member's Bill, which was published on 1 February, which has received lot of support. I have now incorporated that into Amendment 244ZCCA and Amendment 244ZEZA.
This starts from the premise that we are all agreed that Parliament Square is an excellent place for there to be public protest and where there has always been public protest. It is only in recent years that the problem has emerged at all. The catalyst for the problem, of course, has been the introduction of camping. Although Parliament Square is an ideal place for people to protest and should be made available for people, it is not a good thing that people are able to camp there for weeks, months or sometimes years and hog the space, which in effect prevents other people from having use of it. It also makes it a much less impressive, vibrant and immediate source of protest. Therefore, my solution is much simpler. All we really need to do is to ensure through practical housekeeping that people do not camp there.
The problem of control of Parliament Square should be dealt with by having a Parliament Square committee, which would have the function of managing Parliament Square. All those who were interested could be on that committee. That is laid down in my first amendment. Then my suggestion is simple. At some point during each night during midnight and 6.00 am, Parliament Square should be swept clean and any detritus left is removed. People can come back in the morning, start all over again and do whatever they want.
When my Private Member's Bill was published, I got a telephone call from Westminster City Council, which expressed great interest in it. I explained what I just said and someone said, "We never thought of that". It is not only simpler and gentler but-this might be presumptuous-it is more elegant. Frankly, the Home Office has an awful lot of people who labour to produce these things and inevitably they produce more detail. One detail leads to another and one factor leads to another. I have removed a couple of clauses from its Bill, which I hope it will not take too much offence at, but I have included in the categories in my second amendment the sort of things that could be removed.
I hope very much that the Government will realise that this would deal with the essence of the problem. It would be much less confrontational and difficult. If it did not work, of course in the future this could be looked at again and we could do more. But by removing that catalyst of the permanent encampment and occupation of the square, which is a pretty dead form of protest, we would be moving forward. It is a solution that I hope will commend itself to the Government and I hope that they do not produce a lot of technical reasons why it is not practical. I beg to move.
Lord Campbell-Savours: I am very sympathetic to the amendment because I feel quite strongly, and always have done, that people should be allowed to demonstrate in the square. This is a perfectly reasonable way of dealing with the difficulties that arise. Basically, you are simply clearing the square in the evening after the demonstrations have taken place during the day.
It always gives me a thrill when I drive around Parliament Square to see those people encamped on the pavement. This must be one of the only democracies in the whole world where people can demonstrate on the very steps of Parliament. It must be most enlightening for people coming in from all over the world to see it actually happening here in the United Kingdom. It might give them cause to reflect on the way we run our democratic arrangements in this country. This amendment should be seriously considered by the Government. It would certainly save a lot of space in the printing presses where they produce legislation and it would deal with the problem in a way that is perfectly acceptable. I hope it can be considered on Report in perhaps greater detail-perhaps even in the Division Lobbies.
Baroness Miller of Chilthorne Domer: The noble Lord, Lord Campbell-Savours, is quite right. When parliamentarians from other countries come here it is one of the things that they comment on-and not adversely. They do not dwell as much on the slightly messier aspect that MPs and some noble Lords have complained about. They are more impressed with the fact that the demonstrations take place. There is much attraction in the noble Lord's amendment, not least for the Government. They have signed up to a bonfire of regulations and this gets rid of an awful lot of regulations all at once. I imagine that they will be nervous of adopting it because it seems perhaps too gentle but for my part I am very attracted to it.
Lord Wallace of Saltaire: I note that these two amendments are identical, and almost identical to the Private Member's Bill of the noble Lord, Lord Marlesford. Does this replace his Private Member's Bill or will we return to this on 1 July, which I think is now scheduled for the Second Reading of his Bill, for a third debate on the issue that began with the Second Reading of the Private Member's Bill of my noble friend Lord Tyler last Friday?
As I have already said, I welcome the discussion of not just the future of Parliament Square but also the whole question of the democratic environs of the
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If we are going to discuss the whole issue of Parliament Square and demonstrations in the vicinity of Westminster, Abingdon Green and so on, I suggest that we need to pull together a committee which will include not just the authorities here but also the Supreme Court, the authorities of Westminster Abbey and elsewhere. I am sympathetic to a good deal of what is behind the amendment but suggest that if we are to discuss this area it is not just a question of the management of demonstrations or the encampment in the middle of Parliament Square. The Government are working with the Greater London Authority, Westminster City Council and the Metropolitan Police on effective enforcement protocols. Guidance will be issued to the public about these new provisions. However, that is about the narrow issue of the future of encampments in Parliament Square. The wider issues that I suspect the noble Lord wishes to get to require debate outside the confines of the Bill. I therefore request him to withdraw his amendment.
Lord Marlesford: That was a pretty negative response, if I may say so. Although I shall withdraw my amendment, pending Report, I am very glad that I have a slot for my Private Member's Bill on 1 July, when we will have the opportunity to discuss the matter in more detail. It was mentioned several times by people in the discussion of the Bill proposed by my noble friend Lord Tyler. Indeed, my noble friend himself said that it would be a very useful follow-on for his Bill. Others welcomed it, too. Frankly, the point made by my noble friend Lord Wallace about the traffic is pretty irrelevant; it is not in any way involved in what I am suggesting, nor is it involved in what the Government suggest in their Bill. So that is a bit of a distraction.
There seems to be an idea that this matter should be just pushed into the long grass. I know that the Home Office is very reluctant to accept views from outside, but there are occasions when it has to. I remind the House that in 1997 I proposed an amendment to have a national register of firearms on a computerised system. For 10 years, the department played "Yes Minister" in order not to get it. Fortunately, every Minister during that time on both sides did their best to get it done and, eventually, it was put into practice. It is now working extremely well. When the noble Lord, Lord Corbett, who was then chairman of the Home Affairs Committee in another place, called the Permanent Secretary to the Home Office to ask why this proposal, which had been enacted, had not been carried forward, he was told, "It was never our idea-it was Lord Marlesford's idea. We have our own views". The noble Lord said, "But it's law". Anyway, the Home Office did it eventually.
I am sorry that my noble friend Lord Wallace does not feel inclined to take a slightly more positive view than he has done. I am glad that we will have a debate on 1 July, and I hope that noble Lords will come and take part in it-and I look forward to bringing back the amendment at Report. Meanwhile, I beg leave to withdraw it.
Baroness Meacher: My Lords, Amendments 244AB and 244CA are probing amendments. My noble friends Lord Low and Lord Walton had hoped to be here but they both have prior engagements elsewhere. They were not expecting to be speaking on this Bill at this time of the evening but have both asked me to impress upon the House their strong support for these two amendments.
The problem of legal highs, many of them produced in China and available on the web, is growing rapidly. The Government understandably want to find an appropriate response to a variety of substances involving very different levels of risk. Understandable too is the idea of temporary banning orders while information about the substances is gathered and analysed, albeit that a full evaluation of those substances will probably take about five years. I am not entirely sure what the Minister will do at the end of the one-year period.
The only question that I hope we can address today, and it is serious, is whether the Minister will consider opening up the possibility, without making any commitment, of controlling the supply of some of these substances through alternative regulatory mechanisms rather than all of them being controlled through the Misuse of Drugs Act 1971. In putting this question I applaud James Brokenshire, the Minister for drugs policy in the other place, for making it clear that the temporary bans will apply only to the supply, sale and distribution of those substances and not to users, thus avoiding the criminalisation of users during the period of the temporary bans. My concern is that at the end of the banning period many of the substances will, I guess, become permanently banned. As the Bill stands, the substances would all fall within the ambit of the Misuse of Drugs Act.
In seeking to find appropriate controls of legal highs, the Government have a wonderful opportunity to explore different methods of control and to evaluate them. It is in the spirit of wishing to work with the Government to find the best way forward that I have tabled these two amendments. Why do I regard the opportunity to evaluate alternative methods of control as so important? There is increasing evidence from across the world that a health-oriented approach to drug use is more effective than criminalisation in reducing levels of addiction. Surely that is our common goal.
The Global Commission on Drug Policy concluded that criminalising drugs users has failed to reduce problem drug use. It recommends, rather precisely, the approach of our two amendments: to encourage experimentation, with alternative methods of control of less harmful drugs, evaluation and the introduction of evidence-based treatment. I know that the Minister would wish to take seriously the recommendations of global commission members, among them Kofi Annan, former Secretary-General of the United Nations- he was ultimately responsible for overseeing the implementation of the UN drugs conventions-Paul Volcker, former chairman of the Federal Reserve and George Shultz, former US Secretary of State, all highly regarded world figures, not to mention the raft of ex-Presidents of countries in Europe and Latin America. I am sure that the Minister will want to take most seriously the views of all of those people.
Globally, the use of drugs continues to rise at an alarming rate: opiates by 34.5 per cent, cocaine by 27 per cent and cannabis by 8.5 per cent in the 10 years to 2008. In the UK, as we have focused more upon the treatment of users and as the police increasingly, though not uniformly, turn a blind eye to cannabis use we have seen a flattening out of some drug-use statistics. Any switch from criminalising to evidence-based health policies seems to be helpful and I know that the Government plan to increase access to drug treatments. Our aim today is to ensure that the policy for legal highs discourages problem drug use, rather than driving people into the hands of unscrupulous drug traffickers and on to the most dangerous and contaminated substances.
What are the consequences likely to be of a ban on legal highs? We can look at the impact of the ban on mephedrone, for example. Did it reduce mephedrone use? Apparently not. In the latest Mixmag annual survey, a higher proportion, 61 per cent of respondents, had used mephedrone in the year following the ban than the 42 per cent in the year before. Three-quarters of those who had ever tried mephedrone had apparently done so since it was banned in April 2010. Some had decided to use ecstasy instead, and 19 per cent said that they had used more cocaine as a result of the ban. I do not necessarily understand all of this, but that information is relevant to our debate today.
Regulation of such a market is far from straightforward. Whatever the policy, young people need to know the risks associated with these highs. Will the Minister agree to fund an information campaign on legal highs and evaluate it as one element of the evidence base for future policy-making?
A warning signal comes from the Demos/UKDPC study, which points out that banning substances without clear evidence of harm could forestall the research and development of useful medicines. They also point out that bans can result in people turning to more harmful substances. Will the Minister comment upon these concerns?
In the Netherlands and Finland, legal highs have been controlled through medicines legislation. Austria has also used medicines legislation to restrict the sale of "spice" without criminalising users. There is little analysis yet about the effectiveness of this approach. Have the Government explored the possibility of using medicines legislation in this country and our evaluating it ourselves?
New Zealand has tried both the regulation and the prohibition of BZP, a legal high. The New Zealand Law Commission reviewed the alternative methods of control and favoured regulation over prohibition. I would welcome the Minister's response to the New Zealand commission's conclusions.
The APPG on Drug Policy Reform, which I chair, is planning to undertake an inquiry into alternative forms of control for legal highs. We hope to report in six to nine months. I hope that we can work with the Government to find the best solution to a very difficult problem, but in order to do that we need the door to be kept a little ajar in Clause 152. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, my name is to this amendment. I pay tribute to the noble Baroness, Lady Meacher, for her energetic work in this area. She has given the House an excellent introduction to this amendment so I will not delay things at all, except to say that since the Misuse of Drugs Act 1971 one Government or another-indeed, society as a whole-have tried almost everything in the book. We have not got anywhere with it, really. The so-called war on drugs is a stalemate at best; at worst, we are losing the battle. This seems a good moment to try a different approach. Something in particular that has changed is that in the early 1970s, when we did not have the internet, people could not just order things online and get them by post. The public now are looking for consumer protection, whether for aspirins or legal highs. I understand that we all, whatever our political point of view, have to approach this question with great sensitivity; it is not an easy one. I am grateful to the noble Baroness for tabling the amendment in the way that she has. It gives us a great opportunity.
Lord Stevenson of Balmacara: My Lords, the whole House should congratulate the noble Baroness, Lady Meacher, on the way in which she has introduced the amendment. It has given us a good perspective on these issues and picks up on the very good debate on this topic that we had at Second Reading.
This side of the House took from that debate the concern that has just been mentioned about the rhetoric of the war on drugs and the worry that that may have outlived its purpose. Our concern is that there needs to be a new look at all the psychoactive drugs, and a policy that looks through one prism at the way in which they impact on individuals and society. Our continuing worry has been expressed again today: that policy in this area needs to be joined up much better, so that the health and educational aspects of all work on drugs are brought together. I know-at least, I hope-that the Minister shares in that expression of concern. Whether that amounts to a need for a new plan B in this area would be a good debate and might be something that we want to come back to on Report.
Our amendments in this group are supportive of the original amendment. We feel that control under the Misuse of Drugs Act 1971 may be appropriate for the most harmful new substances, but it has a number of negative consequences that can increase the dangers to some users from the substance in question and other more harmful substances for which new drugs may be substituted. It would therefore be appropriate for the ACMD to be asked also to consider the use of other legal powers, such as consumer protection legislation, trading standards in particular or, as has been discussed, medicines controls, before they consider recommending the use of temporary banning orders.
As has been mentioned again in this debate, the experience of the control of mephedrone indicates that the Government can at times have very limited information about both the impact of controlled substances on users and the changes in usage in terms of the adoption of both less and more harmful behaviours caused by the introduction of legal controls. Again, it would be appropriate for the ACMD to commit to
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Finally, the Government should be encouraged to commit to reviewing the temporary banning powers in general after three years from their first use. This will provide an opportunity to evaluate how effectively they are being used and what impact they are having on the consideration of other control mechanisms.
Baroness Browning: My Lords, I am grateful to all noble Lords who have spoken. I know that we share an understanding across the House of the seriousness of this important subject. The measures in this legislation are designed to implement a coalition agreement that we would introduce a system of temporary bans on new legal highs and psychoactive substances while health issues are considered by independent experts. We will not permanently ban a substance without receiving full advice from the ACMD. That was the Government's commitment. I hope that I can reassure noble Lords that, although this has come before the House in this legislation, we have not been neglectful of the need to act quickly on these matters. We know that this is a fast-moving subject.
We have, for example, completed a three-month pilot to explore improvements to the current forensic early-warning system for indentifying new and emerging drugs, which are emerging all the time. The forensic early warning system will see the Government and the forensic community working together to proactively identify emerging drugs using a range of methods including laboratory testing and analysis of police seizures. I will not say more about that, but I wanted to share it with the House because it is important that, while we legislate on the need to be able to bring in these temporary bans, a lot of work takes place alongside that.
Of course, we also rely on the expert advice of the Advisory Council on the Misuse of Drugs, which we consider to be an important part of the process. Indeed, my right honourable friend the Home Secretary has already asked the ACMD to produce a further report in the summer, looking at how we will take this overall policy forward in a more general way.
Clause 152 introduces Schedule 17 provisions for temporary class drug orders by virtue of amendments to the Misuse of Drugs Act 1971. The new provisions will ensure that our drug laws are responsive to the changing drug landscape. New emerging psychoactive substances come at pace out of laboratories where they are designed. As has been mentioned, these laboratories are not necessarily located in this country. The substances may also be marketed from abroad and, as we have heard, over the web. Suppliers market
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The Secretary of State must meet two conditions to invoke a temporary class drug order which are aligned to current provisions for permanent drug control. The first condition is to have established that the drug in question must not be caught under the 1971 Act. The second condition, which we introduced in response to the concerns expressed by the Advisory Council on the Misuse of Drugs and in the other place, is that ACMD must be consulted or have made a recommendation for an order to be made.
The ACMD will continue to be entrusted with the provision of comprehensive advice to government on measures that ought to be taken. As an independent expert body, it will provide best advice that may or may not include a recommendation to make a temporary class drug order. It may or may not include broader advice. The Government have no intention of fettering the basis on which its experts advise. Noble Lords will be interested to know that we will shortly be receiving from the ACMD its general advice on approaches to demand and supply of new psychoactive substances. We will give full consideration to that advice and implement it where appropriate.
The noble Baroness, Lady Meacher, suggests in her amendments that the supply of a temporary class drug should be regulated under the Intoxicating Substances (Supply) Act 1985, I believe with the purpose of restricting sales to a person under the age of 18. I commend her focus on protecting young people from these drugs and their harms. She and I have discussed this very important area and I hope that we will continue to do so. However, if the ACMD and the Secretary of State consider that a drug's harms are or have the potential to warrant temporary control, it is the Government's policy to take steps that protect all of society, not just those under the age of 18.
I was also asked-I think by the noble Baroness-about the need for more information to be provided, particularly to young people. We are hoping to improve this situation. Since I took up my post in the Home Office, I have written to the organisers of music and pop festivals which take place around the country at this time of year. My predecessor did this last year. It was a good way to get that information across to the people who attend these festivals-that is, through the organisers. That would apply particularly to some of the young people the noble Baroness mentioned.
The new powers will bring control of a temporary class drug order under the 1971 Act, which requires that an initial impact assessment is made. Under the current provisions, a further, fuller impact assessment is required if a drug is to be permanently controlled, and in more detail where any legitimate use of the drug has been identified. We want to avoid duplicating those arrangements that are already in place.
In addition, annual publications of drug misuse and enforcement statistics and research outcomes in the delivery of our policies will also give effect to
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The noble Baroness, Lady Meacher, mentioned methadrone and the Mixmag survey. Although mephedrone became a controlled class B drug under the Misuse of Drugs Act on 16 April 2010, and the Mixmag survey of 16 to 24 year-olds survey showed that since the drug was banned 56 per cent of respondents said that their use of the drug had decreased or stopped, perhaps particularly important was the fact that since the ban approximately 141 kilos of mephedrone were seized by the UK Border Agency. That is a quantity of the drug that has not gone into the public arena for use by young people.
Further amendments seek to require the Secretary of State to review the new provisions in consultation with the ACMD. I will expand on my answer to the noble Baroness, Lady Meacher, with reference to the current provisions of the 1971 Act, under which the ACMD has a statutory duty to,
and to advise Government on drug policy. I come back to the fact that we think that it is important that when we are advised-and the committee has a statutory duty to advise-we take very seriously the advice that the Government are given.
We believe that all our drug policies should be kept under review. We have made this commitment in our Drug Strategy, by placing the ACMD's advice on new psychoactive substances at the heart of enabling the delivery of the strategy. Members of the House will perhaps be aware that there is a draft working protocol between the advisory committee and the Home Secretary. Copies of that have been in the Library for some time. On that basis, I ask the noble Baroness and noble Lords to withdraw their amendment.
Baroness Meacher: My Lords, I very much welcome the comments of the Minister about the Government's reliance on the ACMD. I understand that the Government will respond positively to its advice. I also very much welcome her point about improving information to young people, particularly through festivals, and her recognition of the need for a full impact assessment of these bans before taking things further. I was interested to note that the Minister did not counter my figures on mephedrone-in other words, more people seemed to use it after the ban than before it. I look forward to further discussions with Ministers on this very important issue, although it is late in the evening for this discussion. On that basis, I beg leave to withdraw the amendment.
Baroness Finlay of Llandaff: My Lords, this amendment obviously concerns the Advisory Council on the Misuse of Drugs, and I must declare an interest, having been a member of the technical committee of the ACMD until last month.
This committee, as everyone knows, has gone through some turbulent times. One can, in some ways, see why the Government's proposed wording to amend the Misuse of Drugs Act is as it is, because it aims to provide greater flexibility and to avoid situations where the council could not meet if the constitution was too rigid.
I understand that the Government have said that they will publish a working protocol governing their relationship with the ACMD, but that has not, as yet, been produced. It is likely to include a list of areas of expertise to which the Home Secretary will have regard when making appointments to the ACMD, and the protocol will be placed in the Library. Unfortunately, my understanding is that the protocol will not be available until after the Bill has received Royal Assent, which is why the amendment is important. We need to know what is to happen. The protocol may not be a sufficient safeguard in the longer term to ensure that there is a well-balanced ACMD. A future Home Secretary would be under no obligation to follow the principles of the working protocol. If it was guidance, they could simply decide to ignore it.
The reason for specifying the groups in the amendment is to try to be broadbrush, without being too prescriptive. Having been a member of the technical committee, I became acutely aware of how important the scientists, the drug control people and the behavioural scientists were to that committee. They brought a dimension and understanding to some things that the rest of us did not have, however much we tried to read around the subject. One of the people from whom I learnt the most was a member of the police force on the technical committee, who brought a degree of insight into the functioning of the outputs of the committee that I found most helpful, as, I think, did others. We invited experts to give us evidence, but the collective memory that formed around the table was important.
I question the Minister about exactly how the process of appointing new members to the council will be conducted. The experience of appointments made in January this year and the subsequent cancellation of one of those appointments, that of Doctor Hans-Christian Raabe, suggests that improvements could be made to the appointments process. When non-scientific appointments are being made, will the Government ensure the expertise available to the appointment panels to assess the competencies of those who are applying? They might look good on paper, but if the appointment panel cannot ask the appropriate questions, it may miss out on the person who could contribute most to the panel.
Under the amendment, I seek assurance about the present safeguards to ensure that appointees have the appropriate level of experience, and about how they will be transferred when the Bill comes into force, to avoid a repetition of some of the unfortunate incidents that have occurred recently, and the bad publicity that goes with that, which undermines the credibility not only of the committee but, more importantly, of its decisions. I beg to move.
Lord Carlile of Berriew: My Lords, although not wanting to repeat the eloquent and informed moving of the amendment by the noble Baroness, I shall speak briefly in support of it. I can well understand why the Government want to be rid of the six specified disciplines in existing law. They are too prescriptive. However, the noble Baroness in her amendment has set out in a much broader way the activities and experience of people who should be members of the advisory council.
I find it difficult to understand why the protocol has not yet been published. It cannot be too long a document and it cannot take too great a time to prepare. I hope that we will hear something positive from the Minister about the future of the council. In particular, it would be very helpful if my noble friend could tell the House that at least the spirit of the noble Baroness's amendment will be incorporated in the protocol. Above all, perhaps she could assure the House that the prediction that the protocol will not be produced until after Royal Assent is quite wrong and that it will in fact be produced quickly, we hope, so that it is available to Members of this House by Report.
Lord Stevenson of Balmacara: My Lords, close readers of the Marshalled List will realise that the amendments in my name are very similar to those tabled by the noble Baroness, Lady Finlay. Indeed, I read them three or four times and I still cannot quite see the difference between them. I am not sure why they appear twice. In fact, it is impossible to read things at this stage, because having been through the alphabet soup of the amendment list, you get so confused about what is or is not there. The noble Lords who have occupied the Chair have done a fantastic job in guiding us through without too many mistakes, so that we have arrived at a Bill that will contain most of the things that it should.
That aside, I simply want to make the point that has been very well made by the noble Baroness, Lady Finlay, and echoed by the noble Lord, Lord Carlile. In her response to the previous group, the Minister mentioned the ACMD about eight times, reflecting the importance that the Government place on that. At the same time, in the name of flexibility, they are seeking to make rather more opaque exactly how those members will be appointed and what their specialisms will be and they have not given us a sense through the protocol of how they intend to do this. This is not a satisfactory basis for proceeding and I hope that the Minister will be able to respond positively to us. We remain in some doubt as to why appointments to the ACMD have been made so flexible; nor are we able to know what they will be looking for in the future.
Baroness Browning: My Lords, I am grateful to all noble Lords who have spoken. On the last group of amendments, I referred to the protocol. It is true that we are still working on the protocol for the ACMD but the draft protocol was placed in the House of Lords Library in April this year.
The working protocol makes very clear that the ACMD will inform the Home Office what expertise it requires and that the Home Office will seek the views of the ACMD to inform any recruitment campaign. The chief scientific adviser to the Home Office will advise the Home Secretary on the balanced membership requirements appropriate to available resource and the need for effective functioning, and the chair of the ACMD will sit on interview panels. I that hope noble Lords who have not yet availed themselves of that document will obtain a copy from the Library.
The Government share the concern for ensuring the quality of the ACMD's expert advice to inform our drug policy. Therefore, I welcome this opportunity to set out our reasons for proposing this change to the ACMD's constitution, and in particular to disabuse noble Lords of the allegations laid at the Government's door that we are intending to remove scientists from the ACMD, which could not be further from the truth.
I fully acknowledge the intention of the amendment tabled by the noble Baroness, Lady Finlay. It may not appear so at first consideration but we share a common interest and appear to be working to a common end, namely securing expertise to the ACMD from which it may provide high-quality advice and by which we may maintain public confidence in that advice. However, we are going about it in a different way. Our proposal is intended to place all members of the ACMD on an equal footing. It might be of interest to the House to know that similar constitutional changes were made to the advisory body under the Medicines Act 1968, the original requirements in it having been similar to requirements placed in the Misuse of Drugs Act 1971. The statutory membership requirements were removed in 2005 and replaced by a broad understanding that members will be appointed because of their high-level scientific expertise and their ability in critical appraisal rather than, as my noble friend Lord Carlile pointed out, a rather old-fashioned and pre-prescribed set of six disciplines.
We recognise that each member of the ACMD has a valuable contribution to make to the work of the council. We take the view that placing one area of expertise on a greater footing than others brings into question the need for the latter. In addition, we do not want to devalue ACMD advice where it derives from particular areas of non-statutory expertise altogether. I advise noble Lords to consider the list of expertise of which it is anticipated that the ACMD membership will be predominantly drawn up, as outlined in the working protocol. When members who have not had a chance to look at the protocol see that list, if they have issues about it or the range of disciplines suggested I would be very happy discuss those with them.
The working protocol also sets out the future involvement of the ACMD in recruiting new members, and the Government and the ACMD are prepared to
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The Government are of the view that we are giving a far more expansive commitment regarding the expert advice and independence of the ACMD than it is reasonable to doubt. It is not in anyone's interests, including those of the public, to expose the ACMD-the advice that it gives, the actions that the Government may take in response to that advice and, as appropriate, Parliament's endorsement of those actions-to speculation and indeed to challenge over whether at any point the ACMD has members who cover the expertise that a statute may discriminate in favour of. I am sure that it is not noble Lords' intention to facilitate such a situation but it would be an unacceptable product of these amendments.
I am aware that there is a lot of business still to conclude but this is an important subject and I hope that noble Lords will bear with me if I put on the record that we have received broad support for this change and for our intent to have a non-statutory list of expertise. Support has come from the Academy of Medical Sciences, the British Academy, the British Society of Criminology, the Royal Pharmaceutical Society, the British Pharmacological Society, the Royal Society and the Royal Society of Medicine. The science and technology committees of both Houses were also consulted. The committee of the noble Lord, Lord Krebs, welcomed the added flexibility for the ACMD's membership and Sir John Beddington, the Government's Chief Scientific Adviser in the Government Office for Science, was also supportive. Indeed, it has the support of the ACMD.
I hope that the noble Baroness will accept that tonight I am not able to go into issues relating to individual members of the ACMD. She will probably be aware that the case she referred to is subject to legal proceedings, and it would not be appropriate for me to comment on it tonight. I ask her to withdraw her amendment.
Baroness Finlay of Llandaff: I am most grateful to the Minister for her extensive response and for the reassurance that she has given. I apologise most sincerely to the Committee as I had been unaware that the draft protocol had been placed in the Library in April.
I am glad that there is reassurance that there will be a strengthening of science and, of course, a recognition of the importance of critical appraisal skills. In the modern world, that is absolutely essential, although it was not essential when the old formula for the committee was drawn up. I beg leave to withdraw the amendment.
"(a) a justice of the peace shall apply to the Director of Public Prosecutions for advice on the advisability of granting the warrant or summons,
(b) no warrant or summons shall be issued under this section without taking into account any advice given by the Director of Public Prosecutions"
Lord Campbell-Savours: My Lords, before I deal with my amendment in detail, I want to say a few words by way of preamble. I am not a lawyer and I cannot claim any knowledge of the background to the administration of justice in the courts, but I am a member of the All-Party Parliamentary Human Rights Group and I have closely followed the debate on this matter in the other place.
A lawyer put it to me in this way the other day: "Clause 154 presents us with a paradox. The Department of Justice is responsible for the administration of justice, yet in certain cases it does not have confidence in the judges it appoints to sensibly administer the justice system, so it effectively nationalises the responsibility". What many of those concerned about Clause 154 keep asking themselves is: what is driving this agenda on? Some people believe that in part it is fear among some supporters of the state of Israel that prominent Israeli citizens who stand accused of breaches of international law might be detained when visiting the United Kingdom. The problem is that there is an element of truth in all this in that, out of the 10 applications made over the past 10 years, the only two that I understand were successful were against Israeli citizens: one the former Israeli Foreign Minister, Tzipi Livni; the other, Major-General Almog. I have to confess that this targeting of Israeli citizens is a very powerful argument for giving the DPP greater responsibility than the Government proposed. But is it so powerful an argument as to totally undermine the well-trodden path of the legitimate right of the citizen to step in where the state may fear to tread for all sorts of diplomatic, interstate, political or commercial considerations?
The problem is that people have difficulty distinguishing the actions of political leaders in democratic states, such as Israel, which I strongly support, who mistakenly believe that they are defending the interests of their democratic state by engaging in actions which border on breaches of international law. Some people confuse Israeli excesses in Gaza with monstrous atrocities in Srebrenica, Rwanda, the Congo, Uganda and Cambodia and the treatment of Tamils in Sri Lanka. But in my view it is totally counterproductive to threaten the Israeli leadership with arrest. We have to maintain a dialogue with such people and force their hand if necessary through sanctions, freezes on assets and other heavy forms of action depending on the circumstances. So, although I have some sympathy with the Government's overriding concerns, I believe that they are proceeding in the wrong way.
I shall now speak to my Amendment 245. I tabled this amendment before the publication of the report of the Joint Committee on Human Rights. Our excellent report captures very well almost all the concerns that I would raise. The Government have explained that their motivation for changing the procedure in these cases is to prevent vexatious applications being successful; that it should not be possible for someone to be able to obtain an arrest warrant as part of a stunt or to make a political point. The Government are quite right on this. However, eight of the applications were turned down by the courts and no warrant was issued. So it is not entirely clear to me that such a major change in the law is necessary. The courts seem to be doing a good job in the few cases that there are of weeding out vexatious applications and turning them down. Furthermore, those cases involve the very same experienced district judges who sit at the City of Westminster magistrates' court-the same judges whom we entrust to hear terrorism and extradition cases. They are people with experience whom we can describe as a steady pair of hands. It is just not clear to me why the Government think that we should trust these people to be wise and judicious in terrorism and extradition cases but not in universal jurisdiction arrest warrant cases.
I am not wholly unsympathetic to the Government's aims. Perhaps there is a need to make it completely clear that the law of England and Wales can allow arrest warrants to be issued only in genuine and serious cases. However, I am not sure that the Government have got the change quite right in their proposals in the Bill. The Joint Committee on Human Rights recommends in its report that,
which I understand is the substance of one of the amendments before us. That appears to me to be the substance of the amendments of the noble Baroness, Lady D'Souza, and the noble Lord, Lord Lester of Herne Hill.
My amendment is very similar but I go a little further. I have tried to capture the enhanced role for the DPP that the Government want to bring in. Crucially, my amendment-like that of the noble Baroness, Lady D'Souza, and the noble Lord, Lord Lester-would leave the final decision to a court. That is very important. The effect of the Government's proposal is that in practice the DPP will be the decision-maker on whether an arrest warrant is granted. Although it is reasonable for the Government to want the DPP to have a role, it is important that the court remains the final arbiter.
Under my amendment, on receiving an application for an arrest warrant in respect of the relevant offences, the court would contact the DPP and request his advice on the likelihood of a future prosecution. This would mean making available to the DPP the evidence on which the arrest warrant would be decided. The court would then be obliged to take into account the advice of the DPP. It may be argued by those who oppose the Government's proposals that in practice this is not much different from those proposals. However, I have tried to reflect the fact that it is very important
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There are several closely connected issues that the Government should also clarify. They concern the test that is to be applied by the DPP. This issue, too, is addressed in the Joint Committee report, and is at the heart of the debate. The first aspect is the level of evidence that will be required. Currently, as I understand it, a court is required to establish that prima facie evidence exists-although I am told that in practice a higher standard of evidence has been applied in previous cases. Alternatively, there might be a threshold test to establish if the evidence is such that it is reasonable to suppose that, in a reasonable time, there will be a reasonable prospect of conviction; or the full code prosecutorial test to establish if there is sufficient evidence for a reasonable prospect of conviction. As a non-lawyer, I believe that it should be something more like the threshold test, which the public would understand and which would allow at least for an interview prior to action. It would be helpful if the Government would clarify what tests they expect the DPP to apply. The other element of the test is a consideration of the public interest. Having applied the evidential elements, the DPP would go on to consider the public interest element. This area would benefit from clarification from the Government, for it is here that suspicion surrounding the change is centred.
In conclusion, I would like us to note that the Government are proposing an entirely new role for the DPP. As I understand it, they are not extending to further offences a role that already exists in relation to some offences; the role is entirely new. Arrest warrants are not normally the domain of the Director of Public Prosecutions. In framing the new procedure, it is important to get it right. The Government have not quite got the balance right in their proposals, and I hope that my amendment will be the subject of serious consideration. I beg to move.
Baroness D'Souza: My Lords, because of the lateness of the hour, I will not rehearse the arguments put forward so eloquently by the noble Lord, Lord Campbell-Savours, with which I broadly agree; our aims are very similar. However, I will emphasise one or two points. My interest is in a fair application of universal jurisdiction. Whatever the driving causes of this are, this country has a duty to apply universal jurisdiction, as other European countries do. In defending the proposition that the current system is neither mischievous nor vexatious, I will add that in the past 10 years, only two cases have resulted in successful prosecution-one in 1999 and one in 2005. The 2005 case concerned an Afghan man who was convicted of torture and hostage taking. I think this argues for a pretty restrained system. Indeed, it is very far from being a vexatious system at the moment.
I would like to add to what the noble Lord, Lord Campbell-Savours, has said about the system being very efficient at the moment. The magistrates know
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Other factors are also important. There is a clear distinction between arrest and prosecution and the very nature of cases involving foreign citizens who are suspected of grievous crimes requires speedier arrest while the case is then prepared for prosecution. Anything that interferes with the element of speed and surprise clearly acts against the application of justice.
The amendment tabled in my name and those of the noble Lord, Lord Lester of Herne Hill, and the noble Baroness, Lady Tonge, affords a role for the DPP in that he or she can make proper representation in court and his or her views will be taken into account in any decisions arrived at by magistrates. In this way, the need for speedy action is preserved, as is the expertise and credibility of magistrates. I think the amendment goes some way to meet the Government's concerns expressed at earlier stages of this Bill but also maintains the advantages of the present system.
Finally, if we are serious about universal jurisdiction, and I think we should be, we cannot allow a system that has at least a chance of successful apprehension and arrest of suspected criminals to be undermined for reasons of political expediency.
Lord Phillips of Sudbury: My Lords, I rise to speak to the amendment tabled in my name and that of my noble friend Lady Tonge. Like the noble Baroness, Lady D'Souza, I will abbreviate my remarks in view of the opening comments by the noble Lord, Lord Campbell-Savours, with which I wholly concur. Indeed, my amendment differs from his and from that in the name of the noble Baroness, Lady D'Souza, and my noble friends Lord Lester and Lady Tonge, in only one particular respect. The amendment moved by the noble Lord, Lord Campbell-Savours, allows-indeed, requires-a justice of the peace to get the advice of the DPP on the advisability of granting a warrant. The amendment tabled in the name of the noble Baroness, Lady D'Souza, and others would allow the court to receive advice from the DPP. I am adamant that any advice given with regard to these matters, which are intrinsically important, must be in open court. It is for the DPP to take the opportunity which is available under both those amendments, I think, to go to the court and argue the matter in open court, not by way of written private advice.
I think that the status quo is perfectly satisfactory and that meddling with citizens' rights in the age of the overmighty state is extremely dangerous. Like the noble Lord, Lord Campbell-Savours, I drafted my amendment and put it down before I saw the evidence submitted by Justice, Liberty and the Joint Committee on Human Rights. It is worth putting on the record not only that the Joint Committee argued long, fully and with conviction that the arrangements in this Bill are wrong in principle and in practice and ended up, I am happy to say, taking exactly the line that the amendment tabled in my name takes. The same was true of Liberty. Justice simply wanted Clause 154 removed alltogether, leaving things entirely with the status quo.
At least my amendment will give further strength to the procedure if that is needed. I do not think that it is but I put it forward in a conciliatory way. As has been said, it is worth briefly repeating that we already have judicial oversight under existing law. It is already the practice to deal with these extremely difficult applications for warrant only before a district judge-who we used to call a stipendiary-who is not only a professional judge but also, because they are heard before the City of Westminster Bench, is a specialist in matters of this type. The district judges concerned deal, for example, with terrorism extradition cases. The judge, whoever he or she is, must be satisfied that there are reasonable grounds that the offence has been committed and that there is admissible evidence which, if uncontradicted, could establish the elements of the offence.
There is also of course state immunity. State immunity was exercised in the case of General Mofaz in February 2004 when he was saved from the issue of a warrant on the grounds of state immunity. Let us not forget that the Attorney-General has the right to intervene and issue a nolle prosequi, which puts an end to it. The Attorney-General will do that on grounds of public interest. As I have said, this is a misguided provision. Perhaps I may quickly read the conclusion of the Joint Committee on Human Rights, which is extremely clear in explaining the difference between the Bill and my amendment. It states that "The difference between notification" of the DPP "and consent" of the DPP,
Lord Thomas of Gresford: I shall speak to the amendment in the names of my noble friend Lord Macdonald of River Glaven, who cannot be here this evening, and myself. From the position of practitioners with hands-on experience of the criminal courts
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Those who feel that way in foreign countries simply do not understand the practice and procedure of our courts. It is strange to amend our law not because of a real problem but because there are people abroad who believe that a problem exists when it does not. We are moving from the position that if the Government want to introduce the question of the consent of the Director of Public Prosecutions, it should be made equally clear at the same time that the tests to be applied are those which would be applied in an ordinary criminal case in this country. No special tests will be needed for those from abroad and who face allegations of offences of universal jurisdiction.
We feel that the tests that are to be applied are those of the existing discretions of the Director of Public Prosecutions. I have been approached today by my noble friend Lord Carlile in his usual genial and understated way to point out that the tests applied by the DPP are in fact subject to change. The guidance has changed in some ways. My noble friend tells me that we are now on the seventh version of guidance issued to public prosecutors. If that is the case, it is perfectly simple to redraft on Report the amendment that we have put forward so that we put in a broader way that the same tests which apply to citizens of this country will also apply in the case of people who come to this country.
But there is a difference with private prosecutions. Let me say that no practising criminal lawyer has any time for private prosecutions. They generally fail, and generally they cause great harm and trouble to people. We feel that prosecution should be in the hands of people charged with those duties; namely, the Director of Public Prosecutions and the Crown Prosecution Service, which acts under the director. The distinction is that the arrest warrant in a private prosecution leads to trial. When the police arrest someone, there is an arrest, and then there is a consideration of evidence that is obtained between arrest and charge. The charge is brought on the advice of the CPS only where there is sufficient evidence for the case to go forward. At that intermediate stage, the charge does not exist in private prosecutions, and therefore the issuing of an arrest warrant leads, as I have said, straight to trial. We believe that safeguards are needed.
Lord Goldsmith: I wonder if the noble Lord could help me on one point. As an experienced criminal practitioner, as he rightly describes himself, he is well aware that there are two elements in the code for Crown prosecutors. One is the test as to the adequacy of the evidence and the second is the public interest. Both have to be satisfied before a prosecution takes
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Lord Thomas of Gresford: The noble and learned Lord makes a very valid point and I accept that of course it is intended that the public interest test should apply in the second of the two instances as well, although it is not stated in the amendment. As the noble Lord said, we are seeking a solution that will ameliorate the decision of the Government to make it an essential prerequisite for the commencement of a private prosecution that the director consents. We simply seek to make it absolutely clear that the director will not apply a different test to people who come to this country. I hope that that answers the noble and learned Lord.
Lord Thomas of Gresford: I do not propose to ask the House to agree to this amendment tonight. This is the Committee stage. We shall consider the issue further. As I have already said, the criticisms so gently advanced to me by my noble friend have led me to believe that we might consider how to rephrase it in a way that would be more acceptable to the House.
Lord Carlile of Berriew: My Lords, we are proceeding in the usual orderly way of your Lordships' House and there remain two amendments that have not yet been spoken to. The first of those is the new clause proposed in Amendment 246, which is in my name and those of other noble Lords, who have been very helpful in our approach to it. Then there is an amendment to that new clause in the name of my noble friend Lady Tonge. I say at the outset that I accept entirely her amendment to my proposed new clause. It seems eminently sensible. The proposed new clause is about giving an account to Parliament of the progress in war crimes cases. I hope the House will indulge me for a few minutes in speaking to this. I shall then say a few words about the matters that have been discussed hitherto. However, unlike my noble friend Lord Thomas of Gresford, I shall not give further details of what was designated by him to be a private conversation that took place earlier in the Bishops' Bar.
There is a specialist war crimes team within the UK Border Agency, which is a very good thing. However, unlike many European and other countries, there is no specialist war crimes unit in either the police or the prosecution services. Other noble Lords and I were involved in all-party and non-party negotiations with the previous Government to expand the universal jurisdiction. Those negotiations were successful. However, they were successful subject to the insistence of the previous Government that what is in Clause 154 should be inserted into the law. All those involved in those negotiations accepted that at the time as being a realistic argument.
As I have said, there is no specialist war crimes unit in either the police or the prosecution service in any part of the United Kingdom. Instead, in England and Wales responsibility for war crimes is shared by SO15-Counter Terrorism Command in the Metropolitan Police-and the equivalent section, headed by Sue Hemming OBE, in the Crown Prosecution Service. The police team responsible for war crimes is also tasked with counterterrorism policing relating to dissident republican groups from Ireland. It therefore has an enormous amount of work to do and deals with a fast-moving scene, irrespective of war crimes.
What does the proposed new clause seek to do? It requires the Government to report annually on all legal action taken against suspected war criminals in the United Kingdom, and on the assistance given to other states and international criminal tribunals. I should argue to your Lordships that it is entirely reasonable and proper that the public and Parliament should be able to take stock of progress in war crimes on a regular basis. Taking stock in that way-having accountability of that kind-will ensure that the Government bestow on the relevant police section the resources that are needed to prosecute war crimes. There have been no prosecutions for war crimes since the prosecution in 2005 of an Afghan warlord who was found living in south London. However, a Peruvian was arrested in Tiverton in Devon in March 2011. He is accused of torture and crimes against humanity for his alleged role in more than 100 killings as a member of a death squad, and is currently on police bail. We hope to see some progress in that case within, of course, the usual legal proceedings.
It is remarkable, given the number of war criminals who are believed to be living in the United Kingdom, that there have been no other prosecutions since 2005. It suggests that insufficient resources are being given to the task. After all, one should bear in mind that, since 2005, the UK Border Agency has taken immigration action against 360 suspected war criminals, while the Metropolitan Police is currently pursuing 29 viable lines of inquiry. The 360 suspects come from a number of countries, including Iraq, Afghanistan and the former Yugoslavia. The UK has also received extradition requests for four subjects from Rwanda who won their extradition proceedings and remain in the United Kingdom.
In addition to the 360, I was visited this afternoon by a representative of an organisation in Bangladesh, which is not included in the list that I enumerated as 360 cases. It is believed that there are several Bangladeshis
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In sum, the purpose of the proposed new clause is to ensure that the necessary progress is maintained in dealing with war crimes and crimes against humanity. I hope that my noble friend the Minister will give some encouragement to myself and others who they put their names to the amendment in the hope that we will see more action promised and in due course taken on this front.
I now turn to the amendments proposed to Clause 154. Despite the eloquence of my noble friend Lord Thomas of Gresford, I am disappointed that my noble friend Lord Macdonald of River Glaven was not here to speak to his amendment this afternoon. I know that he has a busy diary and I am sure that he is doing something very important. But I am glad that we have the wisdom of the noble and learned Lord, Lord Goldsmith, and the noble and learned Baroness, Lady Scotland, who will inform the House of their experience.
The importance of my noble friend Lord Macdonald of River Glaven and his potential contribution is that he is the immediate past Director of Public Prosecutions. I am working on the assumption that he has not consulted his successor, because what is proposed in his amendment, spoken to by my noble friend Lord Thomas, is inconsistent with what has been said very cogently to parliamentary committees by the current Director of Public Prosecutions, Keir Starmer QC.
I would say this to my noble friend if he were here, but were he still the Director of Public Prosecutions I do not believe that he would be prepared to support an amendment of this kind. It is quite simple in my view-I seem to be the only one from the Liberal Democrat Benches who is supporting our Government on this matter this evening-but the simplicity needs to be stated. The Director of Public Prosecutions and his senior staff make charging decisions every single day of the week. That is what they do a lot of the time and it is done at the most senior level. The suggestion that there would be a delay is a canard.
I do not think that I have to declare an interest-indeed, it would be sexist to do so-when I say that my wife works in a senior position for the Crown Prosecution Service, but living with a shared telephone I am well aware of the urgent decisions that are considered in great depth and taken at all kinds of unsocial hours and on all matters of urgency. The suggestion that there would be a delay is simply quite wrong. Furthermore, the Director of Public Prosecutions and his senior staff have enormous experience in making charging decisions. They make all the important charging decisions that take place in this country-or almost all; they should make all, if they are referred to them by their junior staff. In so doing, they apply the Crown Prosecution Service code.
These amendments, particularly that spoken to by my noble friend Lord Thomas of Gresford, attempt to fix in statutory stone something that is much more evolutionary-and needs to be. The Crown Prosecution Service code has gone through many changes. It is reviewed and changed regularly. Since Keir Starmer QC became DPP, it has been changed again and there
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I say to my noble friend Lord Thomas of Gresford, in the kindest possible way, that the noble and learned Lord, Lord Goldsmith, with a single kick scored a hat trick when he demonstrated that the amendment put forward by my noble friend, and indeed by my noble friend the former Director of Public Prosecutions, is fundamentally flawed in its text. It shows exactly the danger of attempting to put into tablets of stone this sort of provision, even when it has been drafted by lawyers as distinguished as they.
I say to noble Lords who have tabled amendments to Clause 154 that we have a responsible Crown Prosecution Service, that we have a responsible and able Director of Public Prosecutions, and that it has been decided that this should be done not by the Attorney-General but by the Director of Public Prosecutions, who is a completely apolitical figure. It seems that the Government have got this exactly right. I hope that the Minister will not budge in his determination that Clause 154 should be unamended.
Lord Pannick: I was a witness to the discussions in the Bishops' Bar between the noble Lords, Lord Thomas and Lord Carlile. I will not give evidence; I claim immunity. I welcome Clause 154. It will remedy a serious anomaly in the current state of our law. The anomaly is that although a prosecution in this sensitive and important context requires the consent of the Attorney-General, a person may be arrested and detained without any consideration as to whether such consent is likely to be given. It has been suggested in this debate that there have been very few cases of that. So what is all the fuss about? Why do we need to change the law? The noble Lord, Lord Campbell-Savours, made that point in opening and the noble Baroness, Lady D'Souza, made the same point.
I declare an interest. Over the past few years, I have advised, pro bono, a number of individuals who have been deterred from visiting this country by reason of the state of our law. They have been deterred even though there was no realistic prospect whatever of the Attorney-General giving consent to a prosecution. These people would not have been protected by diplomatic immunity because that applies only to certain very senior Ministers. They were deterred from coming to this country because of the risk that material would be put before a magistrate at an urgently convened hearing which might result in them being arrested and detained for a couple of nights, with all the inconvenience and embarrassment that that would cause, until this unhappy matter could be sorted out by the Attorney-General confirming that he or she did not intend to prosecute. So it is quite wrong to suggest that the current law has no serious effect. I should also mention that I have
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The current law needs amendment. The law should not be threatening people with arrest and detention, and deterring them from coming to this country, perhaps for the purpose of discussions about peace in the Middle East, in respect of an alleged offence when there is no realistic prospect of the Attorney-General giving consent to prosecution. The law encourages the use of these procedures as a political gesture, and that has no place under the rule of law.
Five arguments have been advanced today as to why the current state of the law should be maintained. I briefly seek to answer them. The first argument is that the individual will be arrested and detained only if a magistrate consents. The noble Lord, Lord Campbell-Savours, made this point in opening, and the noble Baroness, Lady D'Souza, made the same point. The noble Lord suggested that this new clause means that the Ministry of Justice has no confidence in our judgments. The difficulty with that argument is that, as the Director of Public Prosecutions carefully explained in his evidence to the House of Commons Public Bill Committee, the magistrate does not look at and assess the evidence. The magistrate proceeds simply on the basis of what is placed before the court and asks the simple question whether the allegation made satisfies the elements of the offence as defined by law. The magistrate does not apply the code for Crown prosecutors. As noble Lords know, there are two criteria in that code. Is there a realistic prospect of conviction, and would a prosecution be in the public interest? The magistrate applies neither of those tests.
The second argument that has been advanced is that Clause 154 runs a risk of introducing political expediency into this area of the law-a point made by the noble Baroness, Lady D'Souza. I do not share that concern. Under the current law, the Attorney-General decides whether to consent to prosecutions. No one suggests, I think, that the system is currently abused. In respect of the new role that will be conferred on the DPP, he himself emphasised in his evidence to the Public Bill Committee that he would of course consult the Attorney-General, but he would take a decision in this context and would do so independent of government. There is absolutely no reason to doubt that he would comply with those requirements.
The third argument being made is that Clause 154 would somehow reduce this country's commitment to universal jurisdiction for war crimes and other serious offences. Again, the noble Baroness, Lady D'Souza, expressed that concern. There is no basis for that suggestion. As noble Lords know, under current law a prosecution may be brought only with the consent of the Attorney-General, who applies the principles in the code for Crown prosecutors. That will remain the law.
Fourthly, concern has been expressed today as to whether the DPP could act in urgent circumstances if a defendant were playing a short visit to this country. Again, your Lordships need to look at the evidence
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The DPP said that if time is very tight, he would apply a threshold test in this context: is this a case in which there is enough to satisfy him that, within a reasonable period, there will be sufficient evidence to provide a realistic prospect of conviction? That is a fair, sensible and proper approach to take, as I am sure noble Lords will agree. It is an approach far better than to allow for foreign politicians and others to be deterred from coming to this country because of a fear that magistrates may, on hearing urgent applications, order their arrest and detention without any consideration at all of whether there is any realistic prospect of the Attorney-General giving consent to prosecution.
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