Session 2010-11
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Protection of Freedoms

Protection of Freedoms Bill

The Committee consisted of the following Members:

Chairs: Martin Caton  , † Mr Gary Streeter 

Baker, Steve (Wycombe) (Con) 

Blackwood, Nicola (Oxford West and Abingdon) (Con) 

Brake, Tom (Carshalton and Wallington) (LD) 

Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

Buckland, Mr Robert (South Swindon) (Con) 

Chapman, Mrs Jenny (Darlington) (Lab) 

Chishti, Rehman (Gillingham and Rainham) (Con) 

Coaker, Vernon (Gedling) (Lab) 

Efford, Clive (Eltham) (Lab) 

Ellis, Michael (Northampton North) (Con) 

Featherstone, Lynne (Minister for Equalities)  

Johnson, Diana (Kingston upon Hull North) (Lab) 

Johnson, Gareth (Dartford) (Con) 

Opperman, Guy (Hexham) (Con) 

Robertson, John (Glasgow North West) (Lab) 

Shannon, Jim (Strangford) (DUP) 

Tami, Mark (Alyn and Deeside) (Lab) 

Watson, Mr Tom (West Bromwich East) (Lab) 

Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Annette Toft, Rhiannon Hollis, Sarah Davies, Committee Clerks

† attended the Committee


Graeme Gerrard, Deputy Chief Constable, Cheshire, Association of Chief Police Officers

Steve Kavanagh, Commander, Metropolitan Police, Association of Chief Police Officers

Sir Paul Kennedy, Interception of Communications Commissioner

Lord Macdonald of River Glaven, QC, Independent reviewer of the review of counter-terrorism and security powers

Simon Pountain, Commander, Metropolitan Police, Association of Chief Police Officers

Gary Pugh, Chair, Strategic Board, Association of Chief Police Officers

Chris Sims, Chief Constable for the West Midlands, Association of Chief Police Officers

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Public Bill Committee 

Tuesday 22 March 2011  


[Mr Gary Streeter in the Chair] 

Protection of Freedoms Bill

10.30 am 

The Chair:  Good morning, everybody. Before we begin, I have a few preliminary announcements. Members may, if they wish, remove their jackets during Committee proceedings. Will all Members please ensure that mobile phones, pagers and so on are turned off or switched to silent mode during Committee sittings? As a general rule, my fellow Chair and I do not intend to call starred amendments that have not been tabled with adequate notice. The required notice period for Public Bill Committees is three working days, so amendments should be tabled by the rise of the House on Monday for consideration on Thursday, and by the rise of the House on Thursday for consideration on Tuesday. The deadline for the Tuesday sitting immediately following the Easter recess will be 4.30 pm on Tuesday 19 April. The deadline is a full week due to the Easter public holiday. The deadline for tabling amendments for the sittings on Thursday 28 April and Tuesday 3 May are also affected by public holidays and will also be a full week before the sitting. There is a money resolution in connection with the Bill and copies are available in the room. 

Not everyone is familiar with the process of taking oral evidence in Public Bill Committees, so it might help if I explain briefly how we will proceed. The Committee will first be asked to consider the programme motion on the amendment paper, for which debate is limited to half an hour. The Minister has tabled an amendment because an organisation is unable to field a witness, so once he has moved the programme motion, we will consider that amendment before we decide on the motion itself. We will then proceed to a motion to report written evidence, and then a motion to permit the Committee to deliberate in private in advance of the oral evidence sessions. I hope that we can take that formally. Assuming that the second of those motions is agreed to, the Committee will move into private session, and at that stage I am afraid that I will have to ask witnesses and members of the public to leave us for a short while. You will then be invited back into the room and our oral evidence session will begin. If the Committee agrees to the programme motion, it will hear oral evidence this morning. 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  I beg to move, 


(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 22 March) meet—

(a) at 4.00 pm on Tuesday 22 March;

(b) at 9.00 am and 1.00 pm on Thursday 24 March;

(c) at 10.30 am and 4.00 pm on Tuesday 29 March;

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(d) at 10.30 am and 4.00 pm on Tuesday 5 April;

(e) at 10.30 am and 4.00 pm on Tuesday 26 April;

(f) at 9.00 am and 1.00 pm on Thursday 28 April;

(g) at 10.30 am and 4.00 pm on Tuesday 3 May;

(h) at 10.30 am and 4.00 pm on Tuesday 10 May;

(i) at 9.00 am and 1.00 pm on Thursday 12 May;

(j) at 10.30 am and 4.00 pm on Tuesday 17 May;

(2) the Committee shall hear oral evidence in accordance with the following Table:





Tuesday 22 March 

Until no later than 12.00 pm 

The Association of Chief Police Officers 

Tuesday 22 March 

Until no later than 12.30 pm 

Lord Macdonald of River Glaven QC (independent reviewer of the review of counter-terrorism and security powers) 

Tuesday 22 March 

Until no later than 1.00 pm 

The Interception of Communications Commissioner 

Tuesday 22 March 

Until no later than 5.30 pm 

Liberty, Justice, the Law Society and the Criminal Bar Association 

Tuesday 22 March 

Until no later than 6.30 pm 

The Independent Safeguarding Authority and Mrs Sunita Mason (Independent Advisor for Criminality Information Management) 

Tuesday 22 March 

Until no later than 7.00 pm 

Genewatch UK and Action on Rights of Children 

Thursday 24 March 

Until not later than 10.05 am 

The Information Commissioner’s Office 

Thursday 24 March 

Until no later than 10.25 am 

The Campaign for Freedom of Information 

Thursday 24 March 

Until no later than 2.00 pm 

The NSPCC, The Scout Association and Stonewall 

Thursday 24 March 

Until not later than 2.45 pm 

The Local Government Association and the Welsh Local Government Association 

Thursday 24 March 

Until no later than 3.45 pm 

The AA, the RAC Foundation, the British Parking Association and the Security Industry Authority 

Thursday 24 March 

Until no later than 4.30 pm 

Andrew Rennison (Interim CCTV Regulator), the British Security Industry Association and Birmingham Against Spy Cameras 

(3) proceedings on consideration of the Bill in Committee shall be taken in the following order; Clauses 1 to 19; Schedule 1; Clauses 20 to 39; Schedule 2; Clauses 40 to 53; Schedule 3; Clauses 54 to 56; Schedule 4; Clauses 57 to 60; Schedule 5; Clauses 61 and 62; Schedule 6; Clauses 63 to 101; Schedules 7 and 8; Clauses 102 to 107; new Clauses; new Schedules; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.00 pm on Tuesday 17 May.

It is a pleasure to serve under your chairmanship, Mr Streeter, as we consider the Protection of Freedoms Bill. It will also be a pleasure to serve under your co-Chair, Mr Caton. I and my hon. Friend the Minister for Equalities, who also has responsibility for criminal information, look forward to detailed discussions on

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the provisions. I am pleased to see some familiar faces on the Opposition Benches, having served with them on the Police Reform and Social Responsibility Bill Committee. I look forward to continuing the healthy discussions on that Bill that are relevant to this Bill as well. I look forward to constructive exchanges with each of the Committee members on the Opposition Front Bench, as well as other Opposition and Government members of the Committee, during our detailed scrutiny of the legislation, which is a key part of the Government’s agenda to rebalance freedoms and ensure that we strike a proper, proportionate balance between the rights of the state and the rights of the individual. 

I believe that the programme motion provides more than adequate time to enable proper scrutiny of this important Bill, which delivers a number of our coalition commitments to restore freedoms and roll back unnecessary state intrusion into people’s lives. Judging by the contributions made on Second Reading, we can anticipate some lively discussions about the retention of DNA and the vetting and barring scheme. There are, however, many other important provisions, including the regulation of CCTV, the prohibition of wheel clamping, stop and search provisions relating to counter-terrorism and so on, which are equally deserving of proper scrutiny. 

Before we embark on clause-by-clause consideration of the Bill, the programme motion provides for two days of oral evidence from 25 individuals and organisations. Those witnesses will, I am sure, represent a range of views and will help inform the Committee’s consideration of the Bill. The Committee will notice an amendment in my name to the programme resolution which, Mr Streeter, you have already made reference to. Unfortunately, one of the proposed witnesses, the British Security Industry Association, is now unable to attend to give evidence. The amendment therefore removes the Association from the list of witnesses. It would have been useful to have the opportunity to hear its views on the Government’s proposals for the further regulation of CCTV, but I very much hope that it will be able to submit written evidence for us to consider. 

Our deliberations on the Bill will also be added to by a new and experimental innovation, the public reading stage. I am aware that Members may not have received the report, which was intended to have been received by them for this morning’s sitting, although it was circulated yesterday. I am making urgent inquiries to ensure that further copies can be submitted to the Committee. I would have preferred that all Members had received the report in time for this morning—that was our intention—but I hope that Members will recognise that it is an innovative new approach seeking to engage the public in the consideration of legislation. We have received over 500 comments on the Bill from members of the public. 

I do not want to detain the Committee further; I know that there are lots of witnesses for us to get through, and accordingly I invite the Committee to agree the resolution, subject to my amendment. 

Vernon Coaker (Gedling) (Lab):  Good morning, Mr Streeter. If it is your pleasure, I shall stay seated. Good morning to everyone on the Committee. It is very good to see that my legal brief has come with me from the Police Reform and Social Responsibility Bill. I am pleased to see the hon. Member for Northampton North

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here; we are both raring to go. I thank the Minister for his introduction to the Bill. As he says, there are some important matters to be discussed; there is a balance between civil liberties and public protection and where we draw the line on that will be a matter for debate on a whole range of issues. 

I am also grateful for the Minister’s comment about the public reading stage. It is somewhat regrettable that we have not seen the report—certainly, I have not seen it; that may be my fault, but it has certainly come in very late. I appreciate that this is a pilot, but the deadline for comments was, I think, 7 March and it has been a couple of weeks since then. If we are to scrutinise the Bill, the evidence sessions are very helpful; we have expert witnesses coming to give us all their thoughts and views and professional opinion on the whole range of issues before us and that certainly informs our debate and adds significantly to it. Clearly, the whole point of the public reading is to take into account the points of view of many people out there who might not otherwise have the opportunity to comment. It would have been interesting to have those points of view and it may have informed one or two of the questions that we might have asked our professional witnesses. I appreciate what the Minister has said and it is important that we get those points of view as soon as we possibly can. 

On another matter, the generality of the programme motion is fine, but I want to ask the Minister to explain to the Committee why we are discussing clauses on stop and search in the Bill when the Government have passed a remedial order that, in effect, brings into law those very clauses. The Minister will know that the whole area of guidance and law around stop and search has been somewhat chaotic. In July last year, in response to the judgment of the European Court of Human Rights, the Home Secretary announced interim guidance to prevent the police using Section 44 stop-and-search powers. 

The Chair:  I am reluctant to interrupt, Mr Coaker, but would you relate this to the programme motion? 

Vernon Coaker:  The programme motion has within it our discussions of clauses 58 to 62. These clauses are amendments to the law with respect to stop and search. The remedial order, which the Government have published and which came into law on 18 March, in effect puts into practice and into law the clauses before us in the Bill. I am trying to ask, Mr Streeter, why we have clauses before us to discuss which the Government have already, through the remedial order, put into law? 

Last July, the Home Secretary published guidance which said that there should be no reasonable suspicion; then there was the counter-terrorism review which said that there may be some problem with that; then more guidance was published, which came into effect on 6 March, which has now been superseded by new guidance which came into effect on 18 March. Surely, in the programme motion, the Minister needs to explain to the Committee why we are discussing clauses which bring into law things that are already in law because the Government passed a remedial order. It is, frankly, chaotic and this is a serious part of the Bill. 

We have senior police officers with us who are receiving different guidance about stop and search all the time. Three or four different codes of practice, sets of guidance,

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have been sent out to police about the operation of stop and search and whether reasonable suspicion can or cannot be used. I want the Minister, through you, Mr Streeter, to tell the Committee why we are discussing these clauses. This prevention and suppression of terrorism remedial order, the Terrorism Act 2000 (Remedial) Order 2011, was made on 16 March 2011, was laid before Parliament on 17 March 2011 and came into force on 18 March 2011. Why is it appropriate for us to include in this programme motion clauses that are already law? Surely, this Committee, or Parliament, should have had the opportunity to debate these clauses before they came into law. What is the point of having clauses in a Bill that are already law? Will the Minister respond to that? 

The Chair:  Before I ask the Minister to respond, would anyone else like to contribute on the programme motion or amendment? 

James Brokenshire:  The hon. Member for Gedling will, I am sure, make a number of comments on the detailed consideration of the provisions relating to counter-terrorism stop and search, as, I am sure, he will on other issues, but the purpose of having the provisions within the Bill is to provide the very scrutiny and analysis that he is seeking of provisions to set out the long-term framework for ensuring that the police have the powers that are required to protect the public. I am sure he will wish to raise questions with relevant witnesses that will appear before the Committee this morning, whether from the Association of Chief Police Officers or the independent reviewer of counter-terrorism, who will, I am sure, be able to answer his questions on the necessity of those powers and, equally, the necessity of having provisions in place to cover the period between now and Royal Assent. That is why it is appropriate to have the provisions in this legislation to allow consideration and scrutiny of what is an important part of this legislation and to ensure that there is detailed examination during the taking of evidence this morning. 

Vernon Coaker:  Unusually for the Minister, that is totally inadequate. If the Government wanted a debate about laws on stop and search, they could have arranged for a debate on the Floor of the House. This Committee is going to be asked to consider clauses on stop and search that are already in law. I suggest that that is not the way to conduct business on something as serious as this. Parliament, or even this Committee, should have had the opportunity to debate it, whatever the rights and wrongs of the remedial order before us. If the Minister thinks that there is a problem because there is a gap in the guidance between 6 March and 18 March, then there should have been the opportunity to debate it on the Floor of the House. 

The Chair:  I am going to move us on, because this is about the programme motion. The hon. Gentleman has made a very powerful case and, no doubt, he will return to it as the Bill chugs its way through Committee. 

Amendment made: in the final entry in the Table in paragraph (2) leave out ‘the British Security Industry Association’.—(James Brokenshire.)  

Main Question, as amended, put and agreed to.  


(2) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 22 March) meet—

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(a) at 4.00 pm on Tuesday 22 March;

(b) at 9.00 am and 1.00 pm on Thursday 24 March;

(c) at 10.30 am and 4.00 pm on Tuesday 29 March;

(d) at 10.30 am and 4.00 pm on Tuesday 5 April;

(e) at 10.30 am and 4.00 pm on Tuesday 26 April;

(f) at 9.00 am and 1.00 pm on Thursday 28 April;

(g) at 10.30 am and 4.00 pm on Tuesday 3 May;

(h) at 10.30 am and 4.00 pm on Tuesday 10 May;

(i) at 9.00 am and 1.00 pm on Thursday 12 May;

(j) at 10.30 am and 4.00 pm on Tuesday 17 May;

(2) the Committee shall hear oral evidence in accordance with the following Table:




Tuesday 22 March 

Until no later than 12.00 pm 

The Association of Chief Police Officers 

Tuesday 22 March 

Until no later than 12.30 pm 

Lord Macdonald of River Glaven QC (independent reviewer of the review of counter-terrorism and security powers) 

Tuesday 22 March 

Until no later than 1.00 pm 

The Interception of Communications Commissioner 

Tuesday 22 March 

Until no later than 5.30 pm 

Liberty, Justice, the Law Society and the Criminal Bar Association 

Tuesday 22 March 

Until no later than 6.30 pm 

The Independent Safeguarding Authority and Mrs Sunita Mason (Independent Advisor for Criminality Information Management) 

Tuesday 22 March 

Until no later than 7.00 pm 

Genewatch UK and Action on Rights of Children 

Thursday 24 March 

Until not later than 10.05 am 

The Information Commissioner’s Office 

Thursday 24 March 

Until no later than 10.25 am 

The Campaign for Freedom of Information 

Thursday 24 March 

Until no later than 2.00 pm 

The NSPCC, The Scout Association and Stonewall 

Thursday 24 March 

Until not later than 2.45 pm 

The Local Government Association and the Welsh Local Government Association 

Thursday 24 March 

Until no later than 3.45 pm 

The AA, the RAC Foundation, the British Parking Association and the Security Industry Authority 

Thursday 24 March 

Until no later than 4.30 pm 

Andrew Rennison (Interim CCTV Regulator) and Birmingham Against Spy Cameras 

(3) proceedings on consideration of the Bill in Committee shall be taken in the following order; Clauses 1 to 19; Schedule 1; Clauses 20 to 39; Schedule 2; Clauses 40 to 53; Schedule 3; Clauses 54 to 56; Schedule 4; Clauses 57 to 60; Schedule 5; Clauses 61 and 62; Schedule 6; Clauses 63 to 101; Schedules 7 and 8; Clauses 102 to 107; new Clauses; new Schedules; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.00 pm on Tuesday 17 May.


That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(James Brokenshire.)  

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Written evidence to be reported to the House 

PF 01 Information Commissioner’s Office 

PF 02 Justice 

PF 03 Association of School and College Leaders 

PF 04 Claire Sandbrook 

PF 05 John Kruse 

PF 06 Diane and Duncan Hartley 

PF 07 Mrs Sharon Vogelenzang 

PF 08 Rob Dawson 

PF 09 Andy Robertson 

PF 10 Girlguiding UK 

PF 11 European Secure Vehicle Alliance 

PF 12 Dale Mcalpine 

PF 13 Equality and Human Rights Commission 

PF 14 British Parking Association 

PF 15 The Law Society 

PF 16 Independent Safeguarding Authority 

PF 17 Richard Thomas CBE, Information Commissioner, 2002-9 

PF 18 Michael Charman 

PF 19 GeneWatch UK 

PF 20 Steve Jolly 

PF 21 RAC Foundation 

PF 22 Member of the public 

PF 23 Criminal Bar Association 


The Chair:  Copies of memorandums that the Committee receives will be made available in the Committee Room. 

Resolved ,  

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(James Brokenshire.)  

10.45 am 

The Committee deliberated in private.  

10.51 am 

On resuming—  

The Chair:  Thank you, witnesses, for your forbearance. We shall now hear oral evidence from the Association of Chief Police Officers. For the record, please introduce yourselves to the Committee. 

Gary Pugh: I am Gary Pugh, the chair of the National DNA Database Strategy Board. 

Chris Sims: I am Chris Sims; I lead for ACPO on forensic science. I am also the chief constable of the West Midlands. 

Graeme Gerrard: I am Graeme Gerrard, deputy chief constable of Cheshire. I lead for ACPO on CCTV. 

Simon Pountain: I am Simon Pountain, commander in the Metropolitan Police. I lead for ACPO on the disclosure of criminal convictions. 

Steve Kavanagh: I am Steven Kavanagh, Metropolitan Police commander for counter-terrorism, here on behalf of Assistant Commissioner Yates. 

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The Chair:  Different colleagues will have different questions. Perhaps you can decide among yourselves who should best pick each one up, unless you are specifically asked. I remind Members that questions should be limited to matters within the scope of the Bill and that we must stick strictly to the timings in the programme motion just agreed. I hope that I do not have to interrupt anyone mid-sentence, but I will do so if need be. 

Q 1 Clive Efford (Eltham) (Lab):  Mr Sims, starting with you—perhaps your colleagues will want to comment as well—what, if any, concerns do you have about the proposed regime in the Bill regarding the retention of biometric data and how will it affect your ability to detect and prosecute crime? 

Chris Sims: Let me start by saying that I picked up very early in your deliberations the notion of balancing civil liberty with security. ACPO utterly understands the importance of achieving that balance. We have always regarded that central question as being a political deliberation rather than a police service deliberation and I still see it very much in those terms. ACPO has worked with successive Governments and we felt that the Crime and Security Act 2010 represented a fair balance and was evidence-led, in that there was a body of research around how that measure would play out in protecting the public. 

The proposal before the Committee today seems to me to draw its authority from the Scottish model, which does not appear to be evidence-led in the way it has been constructed. I am concerned that there has been a lot of rhetoric about the removal of innocent parties, which implies that the database is primarily a punishment, rather than a mechanism for public protection, which is how ACPO has always regarded it. Addressing your specific question, there has been some suggestion that the proposal will make no difference to the level of protection offered. From our work—it is notoriously difficult to put figures on this—there would be a loss of about 1,000 matches per year by the proposed changes; so on 1,000 occasions that a match would have been reported to us under the current rules, that match would be lost under the changes taking place. It is impossible to predict the offence types on those 1,000 occasions. There would be a mixture of serious and less serious offences. 

One of the things that we have repeatedly spoken to Governments about is the need to minimise the cost, the bureaucracy and the risk associated with inputting and deletion. We have always said that the safest way to do that is to ensure that any proposal can be automated—that it can operate, in effect, from algorithms buried within the police national computer. In the way it is drawn up, this measure is far more complicated. So for any single decision there are at least 13 different outcomes, which makes it much harder to programme. 

Would you like me to pause? 

The Chair:  That is a comprehensive answer, and I am extremely grateful to you, but could you keep your answers slightly more brief? 

Q 2 Clive Efford:  You started your response by saying that the six years was based on evidence and research. You criticised the Scottish system and suggested that there does not appear to be the same degree of evidence base for it. Could you elaborate on that? 

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Chris Sims: I will ask Mr Pugh to say a little bit about that. 

Gary Pugh: The discussions that we had on the Crime and Security Act 2010 used a number of calculations to look at the number of DNA matches generated from those who are arrested and not convicted. We then made some judgments on whether and how long DNA profiles should be retained on the DNA database to minimise the risk. A certain amount of data were published during that Act’s progression through Parliament. 

The Scottish system is entirely based on judgment. We have been in close contact with colleagues in Scotland on the national DNA database strategy board. That system, although it is in operation, has not led, for example, to any extensions. They have found it quite complex to operate that system. 

Q 3 John Robertson (Glasgow North West) (Lab):  It has not led to any extensions, but how many applications have there been for extensions? 

Chris Sims: No applications. 

Q 4 John Robertson:  Why is that? 

Chris Sims: I think because there are 6 million records on the national DNA database. We have always argued that it is impossible to create a regime of individual intervention for a database of 6 million. We have to make decisions based on automation. In effect, the Scottish model has to rely on a judgment being made against an individual profile when it reaches three years. That system is very difficult to apply other than in exceptional circumstances. We have been clear from the start that we would envisage extending from three years to five years only in exceptional circumstances in which the case is of such prominence that it comes to light for other reasons and a decision can be made about application. 

Q 5 Nicola Blackwood (Oxford West and Abingdon) (Con):  Mr Sims, I was interested to hear you saying that the current system for DNA retention is evidence-based. In that situation you should have a consistency of application for DNA retention, but I am sure ACPO is aware that there is something of a postcode lottery at the moment with DNA retention. Some forces are refusing to remove DNA after a case is closed, and others are accepting it routinely. Could you explain that inconsistency if there is such an evidence base? Do you think it is an acceptable situation? 

Chris Sims: Yes, I can explain, and no, I do not. You are referring to the power that previously existing for a chief constable, again in exceptional circumstances, to make a judgment for deletion. My colleagues across the country have been placed in a really difficult position since the S. and Marper judgment in that we have been awaiting a parliamentary lead to inform us of the way we should be making such discretionary judgments. I really welcome the fact that the measures before you contain the codification of how that judgment should be made. The so-called postcode lottery has come about because we have waited for a number of years now for the S. and Marper issue to be resolved. The legislation that was passed last summer has not been enacted, and we are back here speaking to you again. The enactment of this legislation will resolve that issue. 

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Q 6 Nicola Blackwood:  So you welcome the DNA programme that is set before you in the Bill. 

Chris Sims: I welcome the piece that refers specifically to the chief constable’s discretion, which, for the first time, will be codified as an attachment to the Bill. 

Q 7 Rehman Chishti (Gillingham and Rainham) (Con):  Mr Sims, with regard to the Scottish model, to which you referred earlier, would I be right in saying that applying the protections of the Scottish model for DNA retention would have no effect on the vast majority of criminal investigations? Linked to that, would you also accept that in terms of DNA-led criminal convictions or evidence, alone it cannot secure a conviction and, therefore, for a number of criminal investigations you need more than simply DNA evidence? 

Chris Sims: Undoubtedly. I hope I made it clear that the changes that are being proposed affect the margins of cases. Our calculations suggest that about 1,000 matches a year would be lost if Parliament were to agree this. That is a small percentage. Undoubtedly, though, it will contain some quite serious cases. That is the sort of judgment that you will be making when you think through the legislation. 

Q 8 Rehman Chishti:  In terms of serious cases, for example with regard to sexual offences, would I be right in saying that a large proportion of sexual cases are issues regarding consent rather than DNA-led stranger rapes? 

Chris Sims: Undoubtedly, that is the case overall, but there are still 1,000 cases that will not be solved as a result of the measure. That is a small percentage overall of a much bigger total, but that is the decision that sits before you. 

Q 9 Vernon Coaker:  Thank you, Chief Constable. First, is any work being done on the 1,000 matches that will be lost if the measures in the Bill are enacted? Is there any indication of what proportion of those would be serious as opposed to less serious offences? Secondly, that is the number of matches that are made in catching somebody who has committed an offence; has any work been done on the number of people who have managed to demonstrate their innocence as a consequence of DNA matches, and is there any reflection of that in the Bill? 

Chris Sims: I am not sure that we can shed a lot of light on the detail. We have been looking at the latest proposal and testing it against the matches that the database has thrown up during the defined period, and asking whether those matches would have occurred if the rules now before you had been applied. It is much too small a sample to draw conclusions about the mix of cases, other than understanding that the mix of cases is never determined by the previous offence; it is determined by behaviour afterwards, so it is likely to be a fairly random mix. Regarding the really important category you describe about proving innocence, the sample size is too small at the moment to make judgments. 

Q 10 Vernon Coaker:  Mr Sims, do you believe that distinctions should be made between young people and adults with respect to DNA retention and the rules surrounding it? Do you see a difference, or should the seriousness of the offence be the determinant of retention periods? 

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Chris Sims: This is a really difficult question, because I think statisticians would say that there is probably no justification for making a difference between young people and adults, but going back to the heart of this question about the acceptability of the measure to broader society, I think broader society would expect young people to be treated differently. That has been a feature of the previous legislation and of this. The only thing I would say is that we do get into considerable detail and complexity in trying to find an appropriate route through that problem. 

Q 11 Mr Robert Buckland (South Swindon) (Con):  Mr Sims, you were kind enough to tell us that the number of matches was a small proportion of those obtained every year. Do you have those figures, please? 

Chris Sims: About 36,000. 

Q 12 Mr Buckland:  So the percentage is? 

Chris Sims: Two to three per cent. 

Q 13 Mr Buckland:  Of those matches, are you able to tell us how many would be conclusive of guilt? 

Chris Sims: The point that Mr Chishti made earlier is important—that DNA is part of a case, it is never the complete part. What is important about DNA and fingerprints is that it is often the piece that quickly identifies a suspect and then allows evidence to coalesce around that suspect. 

Q 14 Mr Buckland:  It is important to note, is it not? Let us take the example of a serious assault where the witness has a bloody injury; the presence of blood on the clothes of a suspect may connote presence at the scene but is not conclusive of participation. 

Chris Sims: No, but the important part is quickly getting to the point where you understand who has been at the scene—who has been in proximity with the victim. That allows the investigation to zero in on the critical evidential questions. 

Q 15 Michael Ellis (Northampton North) (Con):  But that would not help with issues of consent—for example, in sexual offences. To follow on from what my hon. Friend was just saying, the reality is that there would be many offences where DNA would not necessarily even be relevant. 

Chris Sims: Yes. The majority of offences are not detected through DNA or fingerprints. 

Q 16 Michael Ellis:  But even where there is a DNA hit, that would not necessarily help when it comes to matters such as consent or self-defence. 

Chris Sims: No, that is right. 

Gary Pugh: It is important to recognise that the DNA database does not convict anyone. What it does is identify a potential suspect. After that, having identified an individual, there is a host of inquiries into whether that individual is charged and convicted. The role of the database is in identifying potential suspects; it is not part of the prosecution or conviction of offenders. As you rightly point out, there is a host of issues that come into play, regarding the culpability of an individual. 

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Q 17 Tom Brake (Carshalton and Wallington) (LD):  In terms of the effectiveness of the DNA database, what assessment has been made of the impact of ensuring that everyone who has been convicted has their DNA on the database? Secondly, what estimate has been made of the cost of maintaining a very large DNA database, which clearly has many hundreds of thousands of people who are innocent on it? That, of course, is then a resource that is not available to the police to do other work. 

Gary Pugh: Roughly 20% of individuals on the database do not have a conviction. That is the scale of it. As we have reported previously, because there is a significant number of matches from that group—that is clearly the heart of the debate around striking the right balance in terms of retaining DNA of those arrested but not convicted—I do not have the figures of the cost of that particular group. Clearly, we derive from those significant matches that help solve crime. 

Chris Sims: More generally on the cost issue, one important safeguard that is built into the proposal is that we will still do what we call a speculative search on everybody who has been arrested. That is different from the Scottish model. In very famous cases, such as the Bowman case, the conviction came about as a result of speculative search. There are costs associated with change. About £80 million has been estimated in costs associated with producing the change, and an ongoing £2.9 million with the programme. 

Q 18 Clive Efford:  I was going to ask about the process of disposing of data; does that £80 million you were referring to relate to disposing of stored physical samples? Can you say something about the process of removing profiles from the national database? What happens to the DNA data that are in the batches that are processed by the Forensic Science Service and other forensic service providers? 

Chris Sims: You are right, the £80 million is principally about the costs involved in disposing of the samples that are held. I do not think that there is any controversy from our side that it is the right time to be disposing of the samples that have been in existence since the start of the database. That is a one-off cost that must be borne. Deletion, we understand, is about deleting from the main biometric databases—fingerprint and DNA—and the associated records that go with it. If you go further into defining deletion, and you get into a level that involves the case material held by suppliers, for example—and there are other pieces—there are two issues. One is that the costs involved go up at a hugely alarming rate, because it would require people to comb through literally filing cases full of material to make the deletion. More importantly, there is a direct conflict between other legislation in terms of disclosure and fairness of trial, which I know is exercising Ministers to work a correct path through. For the purposes of the Bill, our understanding is about deletion in terms of the database and its immediate ancillary information. 

Gary Pugh: I want to add to the point about batches. In the national DNA database, the DNA profiles are a string of 20 numbers and that is what the database stores. Those 20 numbers are derived from an analytical process in which samples are analysed by forensic science providers. They are analysed in batches, so within that batch it holds all the raw data. What is actually contained,

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I think, within one of the provisions of the Bill, is the notion that if we remove the demographic and personal information from that raw data, then it ceases to have any impact in data protection law, for example. We have been in close discussion with the Information Commissioner, who sits as an observer on the strategy board, to work through what are the most effective processes in terms of how we meet the requirements of the Data Protection Act 1998, recognising that that batch process may contain a profile that is deleted, as well as other profiles that are retained. We hope in the future to programme in more sophisticated ways of doing that. Certainly, as an immediate precaution, what I have done is remove from the forensic science providers all of the demographic data that relate to deleted profiles. So, we have taken steps to protect the privacy of individuals who have been deleted. 

Q 19 Clive Efford:  But their profile is still held at that forensic service provider, because it cannot been deleted. 

Gary Pugh: The raw data are held by the forensic science provider, but they are unable to identify or attribute it to an individual. 

The Chair:  We are moving on from the DNA database in about seven or eight minutes’ time and I have four colleagues who have caught my eye, so snappier questions please. Gareth Johnson. 

Q 20 Gareth Johnson (Dartford) (Con):  Mr Sims, you mentioned a number of offences where you feel that there may not be a match as a result of the Bill. Clearly, though, it would be the case, would it not, that the only way that you can guarantee that a DNA sample taken from a scene would match a sample on the register is if everybody is on the register? Inevitably, unless we take everybody’s DNA, there will be serious offences where there will not be a match. 

Chris Sims: That is absolutely right. This is a series of trade-offs between what would be unacceptable—a universal register—through the position we have now to the position that is being proposed. The only point I seek to make really is that every time we make one of those decisions, it degrades the ability to make matches and detect crime. As long as Members fully accept that and are aware of that, because there have been one or two comments that suggest it makes no difference, and that is not the case. 

Q 21 Mr Tom Watson (West Bromwich East) (Lab):  My apologies to witnesses and colleagues for arriving late—I was on another Committee. I have a constituent who was arrested, but not charged, possibly on the basis of a malicious, anonymous allegation, who gave a DNA sample and now seeks to establish, first, whether he is on the database and, secondly, how he can remove himself from it. There is an extraordinary series of hurdle he has to get over, starting with a subject access request under the Data Protection Act. Is it your sense that he is potentially being unfairly treated and that there needs to be a simple appeals mechanism for a citizen who finds himself in that situation? If you have already covered it, my apologies. 

Chris Sims: No, I do not think that we have. We have a common interest, because your constituent will be my constituent. I made the point earlier that I welcome, in the proposal today, the opportunity to codify the way in which a chief constable’s discretion is used. The sort of

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scenario you have described is exactly the sort of scenario that was envisaged when that was developed. The problem has been that we have been anxious, as chief constables, not to jump the gun, usurp parliamentary position and, in effect, reinvent discretion for ourselves while Bills sit before Parliament. Your constituent may have been the victim of the time lag between the S. and Marper judgment and the legislation which is being discussed today. 

Q 22 Nicola Blackwood:  Mr Sims, I would like to take you back to your earlier comment when you said that you felt that the general public thought that children should be treated differently from adults under the criminal justice system. Surely the public think, most of all, that those who are not found guilty should be treated as innocent under the justice system, but you said that 20% of those held on the DNA system are not convicted. Do you not think it is appropriate that we should be setting forth a DNA retention system that distinguishes between those who are found guilty and those who are not? 

Chris Sims: The last legislation that was passed in 2010 made exactly that distinction. I do not think anyone is arguing otherwise. 

Q 23 Nicola Blackwood:  I understand that, under the current system, those who are innocent can have their DNA held indefinitely. 

Chris Sims: That is because Parliament has chosen not to enact the legislation passed in 2010. 

Q 24 Nicola Blackwood:  We are not considering that legislation, we are considering this legislation. 

Chris Sims: I know, but my point was about distinguishing between the two. On both occasions we accept that there are changes of rules that limit the holding of DNA and fingerprint samples from people who have not been convicted of offences. We are on common ground there. 

Q 25 Nicola Blackwood:  You are happy about that? 

Chris Sims: We have always been— 

Q 26 Nicola Blackwood:  It is yes or no. 

Chris Sims: No, it is not yes or no, because it was not a yes-or-no question. 

Q 27 Steve Baker (Wycombe) (Con):  Mr Sims, you mentioned speculative search. Forgive me, I do not really know what that means. Will you just sketch what it is, why it is helpful and how it is conducted? 

Chris Sims: Yes. Speculative search means that every time someone comes into custody—is arrested—a sample of DNA and fingerprints are taken and that sample is run against the database of crime-scene stains. From those searches, matches are obtained between outstanding crimes and people who may not have come into custody before. As part of the proposal, in certain circumstances, the sample will be taken onto the database. In other circumstances, the sample will be destroyed after the speculative search. That has proven to be a very important protection and it has been built into the legislation that you are considering. 

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Q 28 Steve Baker:  Will you explain why it is an important protection? To what extent does it produce convictions? 

Gary Pugh: It is the distinction between search and retention of DNA profiles. Therefore, when an individual is arrested and the database is searched and the database contains the DNA from all the unsolved crimes that we have obtained a profile from, we are effectively revealing any matches to crimes committed by that individual in the past. That is very powerful. Chris mentioned the Sally Anne Bowman case as an example. There have been many high-profile cases in which an individual arrested for a relatively minor offence has connected to a very serious offence, a rape or a murder. Hence, I echo Mr Sims’s comment that the ability to speculatively search every individual who is arrested provides a very important tool in detecting crime. 

Q 29 Clive Efford:  Mr Sims, you said that a search would be carried out routinely of the DNA database. In the past, all DNA has been retained on the database, so, in a sense, you have been collecting it. In future, not all of it will be—it may be disposed of—and someone may be in a cell for 24 hours. Do you think that a system will drift in where people do not bother anymore, in certain cases? 

Chris Sims: I think not, because within the service people recognise how valuable this process is, and it is now engrained in custody procedures. I am sure that Members have been to custody blocks in their constituencies. It is very much part of the detention process now, so I think that people will still see the value of doing it. 

Q 30 Rehman Chishti:  There are real concerns about the decision of the European Court in S. and Marper with regard to the current regime, which was said to be completely inadequate. In the light of that, do you not think that what is proposed in the Bill moves us considerably towards the right way of bringing people to account in the justice process, along with balancing our rights? 

Chris Sims: The Bill is certainly compliant with the European judgment, as was the 2010 proposal. 

Q 31 Rehman Chishti:  But do you not think that it strikes the right balance between preserving one’s individual freedoms and, equally, helping you in the investigation process? 

Chris Sims: I think the term “right balance” is a political one rather than a police one. All I can do is put the facts behind the decision that you will make. 

Gary Pugh: The judgment criticised us for the blanket and indiscriminate approach to retaining the DNA of those who were arrested but not convicted. It did not actually rule out, if you like, the retention of DNA of those who are arrested but not convicted, and of course therein lies the balance. It also recognised that there needed to be special considerations around what it referred to as minors, or children. 

Q 32 Vernon Coaker:  The chief constable was right to point out that the evidence base for the retention period is contained in the Crime and Security Act 2010, as opposed to this one. However, moving on from that, could I make one comment? The chief constable and Mr Pugh are absolutely right that a code on the deletion of DNA would be exceptionally helpful to chief constables across the county, so the sooner that is done the better. 

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On retention periods, as we know that a distinction has been made between serious and minor offences, I wonder whether there are any comments about whether the dividing line between minor and serious as defined in the Bill is adequate. I appreciate that it might have been helpful to give notice of that question. There is obviously a line. If you go above it, you move into the serious category, or you can go below it. The distinction is laid out in the Bill, and I just wonder whether the line is appropriate. 

Chris Sims: I think there is still some debate around the detail of the distinction. I think I am right in saying that when we last looked, torture did not appear in the list of serious offences. I think there is a bit more work to do to refine the position to ensure that the list of offences— 

Q 33 Michael Ellis:  How often is it prosecuted? 

Chris Sims: Indeed, but one would expect it to be there, if it were. I think that it is serious, so there is still probably a piece of work to do to ensure that we have the list absolutely right. 

The Chair:  Thank you very much indeed. Michael Ellis will now lead us on CCTV. 

Q 34 Michael Ellis:  Thank you, Mr Streeter. Deputy Chief Constable Gerrard, there is a proposal in the Bill for increased regulation of surveillance cameras, and I would like to know whether you see a need for that, and what your views are generally. It is also a recognised fact that we will have a code of practice for the development and use of surveillance cameras in the provisions of the Bill. What are your views on that, and on the appointment of a surveillance camera commissioner? 

Graeme Gerrard: In 2007, ACPO and the Home Office jointly produced a national CCTV strategy. In that document, we asked for some standards around images, the retention period for images, the quality of images and ensuring that systems are fit for purpose. We also requested some sort of framework for regulation and a sort of oversight body for CCTV. So in principle, we are supportive of what is being suggested. We are, however, slightly disappointed that it appears that the police and local authorities, certainly in the initial stages, are the only agencies that will have to have regard to the surveillance camera code. When we wrote the strategy, our concern was not, as you will understand, about our use of CCTV; it was about the poor quality of images that we were getting from agencies other than local authorities and ourselves, where we can control the quality. 

Q 35 Michael Ellis:  As far as you are concerned, the measure is basically giving you what you were asking for. 

Graeme Gerrard: I do not know until I see the code of practice. The devil will be in the detail, I suspect, and until such time as we have had an opportunity to see the code of practice and to see whether that imposes significant regulation and bureaucracy on the service, I will not know whether it has provided us with what we want. 

Q 36 Michael Ellis:  But you were asking for a code of practice. 

Graeme Gerrard: We were asking for a code of practice, yes. 

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Q 37 Michael Ellis:  So that in itself is something for which you were asking. 

Graeme Gerrard: Indeed, but what the code of practice will be, I do not know. 

Q 38 Vernon Coaker:  Is it your view that the code of guidance, or rather the legislation, should cover more than police and local authorities? Have you any figures for the number of cameras that are covered by police and local authorities and the total number? 

Graeme Gerrard: Yes, it is our view that the provision should go wider than the police service. The police service works very closely with local authorities, in partnership, and in the main is very pleased with the quality of the images that they provide to us. However, the vast majority of images that we seize through the evidential process are not from local authority systems or police systems; they are from private systems. 

In terms of figures, we recently published some data on how many cameras we think there are in the UK. Instead of the 4.2 million that was often cited, we now think that the figure is closer to 1.85 million. Of those, only 29,700 are cameras operated by local authorities on the streets—public space CCTV. The police service manages very little public space CCTV. It is mostly in the hands of local authorities. We operate some temporary or redeployable systems, and one or two police forces operate town centre systems, but most of it is in the hands of local authorities. 

The codes of practice will not relate significantly to the police service in terms of the operation of a system, because we do not operate many; local authorities do. However, the measure also talks about the use and processing of images. We use images from the systems and we process images from everybody’s system when we convert that into evidence. In that respect, the codes of practice will significantly apply to us. 

Q 39 Vernon Coaker:  Is the same code of practice—or the same type of thing—applicable between a CCTV camera and ANPR, for example? 

Graeme Gerrard: We assume so, although we are waiting for the codes of practice to be written. I am not representing my colleagues from ANPR; unfortunately, they were not invited as such. They have significant concerns that lumping ANPR camera technology in with CCTV in the same codes of practice will cause us some significant difficulties, because the technology is very different. The outcome is very different and actually our use of ANPR is far more regulated, albeit internally regulated, than the use of CCTV is. 

Q 40 The Chair:  For the record, could you say what ANPR is? 

Graeme Gerrard: Automatic number plate recognition systems. 

Q 41 Vernon Coaker:  This is my final question. Do you think that there will be a conflict between the new CCTV camera commissioner and the Information Commissioner? Will there be tension between them? The Information Commissioner already has a code of practice with respect to this, and there is the Data Protection Act 1998 and so on. How do you see the two

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commissioners relating? Would it be better if it was all put together under one commissioner, instead of having lots of separate commissioners? 

Graeme Gerrard: There is bound to be some overlap, I suggest. There is already a code of practice provided by the Information Commissioner. There is an opportunity, I suspect, to have a joint code of practice. This particular code of practice is far wider than what the Information Commissioner has produced. Theirs relates specifically to CCTV, not to camera systems and surveillance camera systems, which, given the way the Bill has been written, could be absolutely any camera if you are using it at the time for surveillance purposes. Surveillance is not defined in the Bill, so I have used the dictionary definition. I suspect it can be as wide or as narrow as the authors of the codes of practice wish it to be. 

Q 42 Mr Watson:  I want to tease you a little on that. It was with some bemusement that I read that the Minister is proposing setting up another quango. I am not sure whether he has cleared it with the Cabinet Office. Given where public policy is going on the privacy space, would it not make your life simpler if all the new commissioners who are supposed to be regulating the state’s intrusions into people’s privacy were wrapped into one, so that we get a kind of super-privacy commissioner who can deal with all aspects of this? You would get a single point of contact, citizens would know where to go, and we would not have the Government creating all sorts of waste by recreating five different organisations that all need new offices. 

Graeme Gerrard: That depends on whether there is significant duplication between the role of this commissioner and any other commissioner. Until such time as we see the codes of practice and the detail, it is difficult for me to say. 

Q 43 Nicola Blackwood:  Mr Gerrard, you have mentioned a number of times that you do not want to pass comment until you see the codes of practice, and that the devil will be in the detail. I take it that you are making clear to the Home Office what you would like to see in the codes of practice and what your concerns are, and that you are fully consulting on what you would like to see in those codes of practice, so that the Home Office has every opportunity to give you a fully functioning code of practice that you approve of entirely. 

Graeme Gerrard: That would be very nice. 

Q 44 Nicola Blackwood:  Have you met the Minister on this subject? 

Graeme Gerrard: Obviously, we have been consulted. We are one of the statutory bodies subject to the consultation. I am consulting the rest of my colleagues around the country. It will be my job to co-ordinate that consultation for the rest of the service. At the moment, I am entirely happy with the way I am being consulted about it. I wait to see the results of the consultation. 

The Chair:  A final question on CCTV from Tom Brake. 

Q 45 Tom Brake:  Mr Gerrard, how helpful would it be to the police to have codes of practice that apply to the private sector, such as BP garages? I shall give you

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an example. In one particular ward, 20% of police time is spent on dealing with drive-outs and shoplifting at one BP petrol station. There are black spots in the CCTV coverage, the images are often not of an appropriate quality, and the police are actually required to go to the petrol station to collect the material. That is a huge waste of police resources. Do you think that a code of practice would be helpful in ensuring that the police could deal more effectively with such incidents? 

Graeme Gerrard: Yes, and I think that is the intention, although initially it will be voluntary for agencies other than the prescribed authorities. You are right; we spend an inordinate amount of time looking for CCTV. Very often we do not know where it is. There is no requirement for anybody with a camera to register the fact they have a camera, even if they have put it in an area that covers public space, so first of all, we have to go looking for CCTV. Having found it, we have to determine whether it has captured the image. Very often we not know that until we have seized the image, taken it back to the police station and found some equipment on which to play it. Exporting the images is not always easy. There are all sorts of different playback systems. Having done all that, we then find that the quality of the images is pretty awful or the camera was not switched on or not pointing in the right direction, or the image is pretty poor quality. The police service spends a lot of time and effort collecting CCTV, so anything that drives up the standards of the quality of the image and also gives us some indication of how long the images will be kept would be helpful. For example, the codes of practice produced by the Information Commissioner recommend keeping images for 30 days before they are overwritten. Research in Cheshire indicated that at least 10% are kept for less than three days. We do not know that at the time, so image retention periods would be very helpful for us in terms of knowing where the material is and how long we have to go and get it. 

The Chair:  We are now moving on to pre-charge detention. 

Q 46 Tom Brake:  This question is for Mr Kavanagh. What concerns do you have, if any, about the reduction of the maximum period for pre-charge detention for terrorism suspects to 14 days, given that legislation to increase such a period could be introduced if required? 

Steve Kavanagh: Our concerns within the counter-terrorism field have to be based on the fact that nobody has been detained beyond 14 days since 2007. Contingencies need to be made within the complexity of CT investigations in relation to the emerging international aspects and the proliferation of technologies in day-to-day life, such as memory sticks, mobile phones and iPads. All those need searching. The people who are using those technologies are also using encryption and other methods to ensure that they keep their potential behaviours as secure as possible. 

We work with Mr Pugh’s world on a whole range of complex forensic inquiries and, of course, networks are often involved. As we saw recently, before Christmas, there will be arrests across the UK, and co-ordination of that obviously adds another level of complexity to the investigations. That can be managed, as has been shown in recent years, but there will always be a need for some type of contingency that will not impact on

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the investigation so that should a truly awful aspect of an investigation develop for which additional time might be required, that support could be given. 

Q 47 Tom Brake:  On encryption, is it not already the case that if a hard disk is encrypted, it is virtually impossible to crack it, however much time is allocated to the task? 

Steve Kavanagh: There are varying levels of encryption. Certainly, the higher levels of encryption make things much more difficult for anybody to get into them at all. However, there are varying levels of encryption, some of which can still be beaten. 

Q 48 Tom Brake:  How much notice do you think it will be possible to give of a problem with a 14-day limit? How soon in an inquiry would the police, or anyone else investigating the matter, know that you would be up against that time scale? 

Steve Kavanagh: If we look at the current statistic, we see that more than 60% of investigations are currently completed within seven days, so we must not overstate the need for these contingencies. I think that, within seven days, there would be an emerging picture. Whether it is complexity of technologies, outstanding forensic matters or continuing international inquiries that emerge, the interesting challenge that we need to ensure we consider is that at a crucial time in what would clearly be an exceptional investigation, we would be drawing investigative resource away—whether prosecutors and/or police officers—to make sure that the bid for an exceptional case was made. We would face a range of challenges, but I would suspect that within seven days, there would be an emerging picture of what the challenges to that investigation would be. 

Q 49 Vernon Coaker:  This question is supplementary to the one that Tom Brake just asked. Are you in discussions with the Home Office about that? If 60% of cases are resolved in the first seven days, that leaves 40% going on between seven or 14 days. Correct me if I am wrong. The process that operates between you in counter-terrorism and the Home Office will be needed in relation to the early identification of an individual within that 40% who might require additional detention. Clearly, it would be difficult to get people together on a Friday night in order for Parliament to introduce the emergency legislation, so are you in discussions with the Home Office about this? I think it is crucial. 

Steve Kavanagh: Detailed discussions are going on at the moment about how that would take place. As you say, there is particular concern about recesses and other matters. How we can put forward to Parliament, in a meaningful way, why there would be an exceptional case, without undermining it or alerting others we may still be looking for, will represent significant challenges. I know those conversations are going on as we speak. 

Q 50 Steve Baker:  Mr Kavanagh, what disadvantages, if any, would there be to proposed limitations of police powers to stop and search without having to demonstrate reasonable suspicion? 

Steve Kavanagh: There is the argument that the level of stop and search that took place, particularly in relation to areas of critical national infrastructure, provided a notable, although non-evidenced, deterrent effect.

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However, the police are absolutely clear that there is no point in our providing increased levels of security at the cost of public confidence. There is total understanding that the European Court finding on Gillan and Quinton means that we need to reflect, and provide reassurance about how we evidence proportionality and how we ensure that we respond to communities’ needs. It does not matter what the deterrent effect is, if there is no confidence within communities that these powers are being used appropriately. 

Q 51 Steve Baker:  On the appropriateness of powers and communities’ sense of how they are used, can you reflect on the interplay between equalities legislation and stop and search? 

Steve Kavanagh: The requirement for the police to positively monitor and assess the proportionality of what is taking place in their stop and search, in terms of ethnicity, gender, religion and other areas of diversity, is crucial. The processes for that are already in place, with IT and performance teams monitoring them. It is not only about the legislation, although police are required to perform within it; crucially, it is about how we are communicating to different communities why these powers may be used and when they are being used. There is the legislative requirement, but there is also the communication and engagement piece, which we think we can do better. 

Q 52 Vernon Coaker:  Mr Kavanagh, do you think that the Government are now in the right place on stop and search powers? The initial guidance from Mr Mackey said that police officers were required to have reasonable suspicion. Then there were the guidelines that came into force on 6 March. Now, we have new guidelines that supersede the clauses of the Bill. Those guidelines came into force on 18 March and do not require reasonable suspicion. Have you been in discussion with the Home Office on those changes to practice? Is it usual, in your experience of policing, to have three changes on something as important as stop and search? Have the Government finally landed in the right place, notwithstanding the fact that we have not debated it? 

Steve Kavanagh: May I refer you to Mr Sims’s answer earlier? Some of those issues may be slightly political, Mr Coaker. It is important for Parliament and the police to get this right. We have not got it right up to now. Section 47A is a stop-gap measure, until section 43B can be brought in formally. We are pleased that vehicles and vessels have been included in the legislation. Clearly, it would be more helpful in terms of training and awareness if there had been one transition. We understand that Gillan and Quinton put the Government and the police in a difficult position and we need to move forward. 

Q 53 Michael Ellis:  Mr Kavanagh, just to expand on what you said about not having it right until now and about proportionality, is it not right that in 2009 alone 100,000 people were stopped under section 44 of the Terrorism Act 2000, yet there was not a single arrest on a terrorism-related offence stemming from those 100,000 stops? Does ACPO accept that that was an example of disproportionate use of anti-terror power and does it therefore agree with the European Court? 

Steve Kavanagh: The most recent figures that I have state that there has been a 70% decrease in the use of section 44. A total of 45,900 searches took place for the

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year ending 30 September 2010, which was a 77% fall on the previous 12 months. We recognise that there is disproportionality in stop and search and we recognise that there is a requirement for us to ensure that these powers are used in an appropriate way. 

Q 54 John Robertson:  There are stop and searches at airports, where things can change at a moment’s notice. Do you think that the rules concerning stop and search in airports are adequate, or is improvement needed in that area? 

Steve Kavanagh: Where situations can change at a moment’s notice, there are still grounds for stop and search with suspicion under section 43. Clearly, the speed with which some circumstances can change can put officers in an almost impossible situation in relation to their safety and that of those around the stop and search. That is the reality of policing. Some of this will be incredibly difficult, and the events at Glasgow airport have shown that. The section 43 requirement is one that we can use when suspicion takes place in the environs of an airport. It has previously been at Heathrow and transport hubs that the majority of these section 44 searches have taken place. We have noticed that there is an uplift now in section 43 searches, but that is absolutely right as long as the grounds are properly set out. But there are provisions in the legislation for us to provide safeguards to airports. 

Q 55 John Robertson:  The 70% reduction in section 43— 

Steve Kavanagh: In 44. 

John Robertson:  In 44, sorry—are any of them at airports? 

Steve Kavanagh: I am afraid I could not say, Mr Robertson, sorry. 

The Chair:  Can we move on to the disclosure of criminal records? Diana Johnson. 

Q 56 Diana Johnson (Kingston upon Hull North) (Lab):  My question is for Mr Pountain. Can you help the Committee by describing the process by which the police decide what information to disclose for a criminal records check? Do you feel that the portability set out in the Bill will complicate matters for the police? 

Simon Pountain: Good morning. The process around the decision is that the information disclosed must be relevant and, in the judgment of the person disclosing it, must be something that ought to be disclosed. It must be proportionate, and it must be relevant. 

The portability of the check is very helpful. We get to a position where someone applying for a role as a teacher in five different areas does not have to have five different checks. That is incredibly helpful. The only difficulty we need to cover is that the portability, in our view, would need to be based on the area that someone was to be working in; for example, with children, with adults or with the vulnerable generally, so that the relevant information was given. 

Q 57 Diana Johnson:  Just so I am clear, the portability should be limited to the sector. 

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Simon Pountain: That is the word I was looking for, yes. 

Diana Johnson:  That is your approach. 

Simon Pountain: At the moment, if we were looking at portability and how to develop it, that would be ACPO’s position. In order to take it forward, we would like to see it around the sector, rather than generic. If it is generic, it becomes more difficult for us to manage, but if it is sector-based, we can be sure the relevant information is given to the person seeking the role. 

Q 58 John Robertson:  May I declare an interest in the next question? My wife works for Disclosure Scotland as a manager. May I ask Mr Pountain about the differences between north and south? Have they looked at the Scottish way of doing things, because I believe it is slightly different from what happens south of the border, and it appears to work better north of the border? Can you comment? 

Simon Pountain: How could I comment? There are differences, some in terms of the speed with which things can be progressed within Scotland. We have worked very closely with Disclosure Scotland. There is a good relationship between ACPO and Disclosure Scotland, and Disclosure Scotland sits on my national disclosure board. We share with them how we are trying to take things in England and Wales, and they do likewise. Most recently, we have been working on the challenges faced by Disclosure Scotland, for example, in terms of disclosing information that is England and Wales-based. Rather than commenting on who is better, I say that we are working very closely together. 

Q 59 Diana Johnson:  I would like to ask you about a power the police currently have, which is to disclose information to a prospective employer if there is an investigation into a person but, obviously, no conviction. I understand that the Bill will not allow police to disclose that information in future. Would you like to comment on that? 

Simon Pountain: Our view has been that, over the past few years, the so-called “brown envelope disclosure” has only been used a couple of hundred times. Of those, our research has shown that some have perhaps been cases in which normal disclosure should have been used. In accepting the recommendation in the run-up to the Bill, we also recognise that we would need on occasion to make disclosures. In doing so, we would have to revert to common law and the urgent, pressing need for disclosure, which is currently used, for example in the notifiable occupational scheme. For example, if a teacher was arrested, we would deal with it very urgently. We need to make sure that we refine our processes and deal with things under common law. We are happy with that. 

Diana Johnson:  You are happy with that? 

Simon Pountain: Yes. 

Q 60 Diana Johnson:  May I just ask you about the brown envelope? What kind of cases would come under that? 

Simon Pountain: It might be, for example, if a person applied for a role working in a school and they were under current investigation for a paedophile offence.

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There might be other cases, but that is probably the starkest example that I can give. You would not want the people asking for a disclosure to know that the person was under investigation, but you might want the employer not to employ them. 

The Chair:  We now move to our final set of questions, on wheel-clamping. 

Q 61 Rehman Chishti:  This is a question for Mr Gerrard. 

Graeme Gerrard: I sincerely hope not. 

Rehman Chishti:  In that case, it is a question for the whole panel. Do you accept that wheel-clamping is a real problem throughout the country and needs to be dealt with? Linked to that, the Bill will extend power to the police and others to remove illegally parked vehicles. Are you happy with that power? Do you think you can fulfil the role? 

Chris Sims: On behalf of the panel, I do not think that any of us are experts in that area, but from my west midlands perspective, I can say that it has been a horrendous problem for a number of years, and we welcome the legislation. I am sure that you get a lot of complaints from constituents. We also get lots of complaints. Thus far, the powers have been inadequate to deal with the problem, so we welcome the legislation. 

Q 62 Diana Johnson:  I am interested in the extension to the police of the power to remove vehicles. How often do the police remove vehicles, and what is the cost of the police removing vehicles? You may have to write to me about that. 

Chris Sims: We are going to write to you. 

Q 63 Diana Johnson:  What happens to a vehicle once it is removed by the police? Does anyone know? 

Simon Pountain: Let me attempt an answer. There are probably two types of removals. The first is where a vehicle is committing an offence and moved to a car pound, and someone is charged to take that vehicle away. In central London, for example, the Hyde Park car pound is full of such vehicles. 

There are other removals. For example, during demonstrations, we do street-to-street removals. We take the vehicle away, move it to another street and put something on the police national computer to show where it has been parked, so that when the person comes back, they can find their car again. Those are the two different types. 

Chris Sims: There is probably a third type: vehicles that are not taxed. There is a power to remove and dispose of those. 

Q 64 Gareth Johnson:  I do not know if you have data on this, but do you have a rough idea how many call-outs there have been by the police to private road clamping as opposed to clampers employed by local authorities? 

Chris Sims: I do not, but I worked a couple of times in city centre locations when I was in Staffordshire. Stoke-on-Trent had a real problem, and central Birmingham certainly has a real problem. This is nasty and aggressive behaviour. I do not have data, but I would welcome a chance to deal with it properly. 

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Mr Watson:  Mr Sims, may I talk about our constituents again? 

Chris Sims: Of course you can. 

Q 65 Mr Watson:  You and I have both spoken out publicly about cowboy clampers. However, the Reverend Brian Thompson from West Bromwich takes a different view. He is concerned that the new legislation will prohibit him from clamping cars that are parked illegally outside his church. There are also a number of manufacturers outside the West Bromwich Albion ground who have been plagued by that for years. Are you concerned that the Bill might put a greater obligation on your capacity to deal with such issues if it is taken out of the hands of the private sector, and people go to the police to deal with parking illegally and causing a nuisance? 

Chris Sims: The capacity issue might have been more about local authorities than policing, bearing in mind that most parking enforcement in Sandwell is now West Bromwich parking enforcement. I think a lot of the burden would pass there. However, this is a much more focused issue about what we recognise as an organised problem, and the Bill will allow us to deal with it in an organised way and more effectively. 

Q 66 Steve Baker:  Much as we have all had horrible problems with cowboy clampers, it seems ironic that a Bill on freedoms is not only banning something, but banning something that is the assertion of a property right. Is there a better way to moderate the behaviour of cowboy clampers without completely ruling out the activity? 

Chris Sims: Again, I think it deserves legislation. The naming of Bills is something that perhaps I will leave with you. 

The Chair:  The final question on wheel-clamping is from Diana Johnson. 

Q 67 Diana Johnson:  Because we are removing wheel-clamping and introducing the right to use ticketing, I am concerned that the rogue wheel-clampers who blight all our constituencies will move into the ticketing industry and develop a heavy-handed approach to ticketing. Does ACPO have the view that the real issue is about regulation, whether of wheel-clamping companies or ticketing companies? That is the real issue. 

Chris Sims: The piece that I suspect collectively causes us concern is the level of intimidation that comes with the presence of a clamp. There may be issues with ticketing, but it will not carry the level of immediate intimidation that has been the really evil part of this. I am sure that issues will remain, but I think that the provision will take away the threatening issue for members of the public. 

The Chair:  We have four minutes left with this excellent set of witnesses, and the Minister wishes to ask a couple of questions to use up the time. 

Q 68 James Brokenshire:  Mr Sims, when ACPO gave evidence to the Committee examining the Crime and Security Bill in January 2010, it made it clear that

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although retention was properly a matter for Parliament to decide, ACPO wanted a clear set of guidelines and rules. Does that still remain ACPO’s view in relation to that broad general point? 

Chris Sims: I think that was my very opening sentence. 

Q 69 James Brokenshire:  What progress has ACPO made in ensuring that the DNA profiles of convicted persons are included on the national DNA database? 

Chris Sims: I shall defer to my colleague, but we have been working through two national operations. 

Gary Pugh: Over the period of operation of the database, in terms of convicted individuals, we have had three operations to look at people who are convicted in prison, where we currently have a power to take DNA from convicted individuals who have not had their DNA taken before. We have just completed the third of those. It is now a relatively small operation of a few hundred, whereas the first one was much larger. 

Secondly, in relation to convicted individuals generally, we anticipated some of the provisions in the legislation. Instead of requiring a volunteer sample from someone who is convicted, the Crime and Security Act 2010 gave a power to take DNA and fingerprints from those who are convicted. I have been working with colleagues and ACPO. We currently have an operation with police forces. We have provided them with the details of individuals who would fall within the provisions of the Crime and Security Act that have now been enacted, and they are carrying out a risk-based approach to look at those individuals and use the power to take DNA and fingerprints. We are on the case. 

Q 70 James Brokenshire:  Just to be clear on that, in terms of persistent prolific offenders, for example, and the reoffending of those who have been convicted, presumably that is an important change for the effective detection of more crimes? 

Gary Pugh: Yes. Obviously, we do not have the results, as we have not used the power yet—it is only a few weeks old—but certainly we are using an approach to identify and prioritise the individuals that looks at their current level of offending, their age and so on. 

Q 71 James Brokenshire:  Mr Gerrard, on a separate point, what lessons has the police service drawn from the review of Operation Champion about the importance of maintaining community confidence in CCTV, and how might that inform our consideration on CCTV? 

Graeme Gerrard: We recognise that we are very fortunate in that the vast majority of our use of CCTV has a lot of public support. It is important that we maintain that public support. I would certainly look at the codes of practice for some requirement about people who will be putting up CCTV cameras, and for there to be some sort of community discussion or consultation and some sort of assessment to ensure that there is support from the local community. We know that cameras in areas where there is not that support ultimately get damaged anyway. We would look forward to that requirement. 

Q 72 Vernon Coaker:  Could I ask Mr Gerrard to confirm that I have the figure right? ACPO’s assessment is from 4.2 million cameras to 1.85 million, of which the

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Bill will affect only 29,700. Is that why there is a worry about the breadth of the Bill? Secondly, is there any recent evidence about the effectiveness of CCTV in both detecting crime and increasing public confidence? 

The Chair:  Very quickly, please. 

Graeme Gerrard: Yes, I confirm those figures; there are 1.85 million, of which fewer than 30,000 are in the hands of local authorities. No, there is no up-to-date research on the effectiveness of CCTV at the moment. 

The Chair:  Thank you very much indeed, gentlemen, for your excellent and concise answers. We will now move on to our next witness. 

12.1 pm 

The Chair:  Lord Macdonald, welcome. Thank you very much for attending our session. We have a number of questions, and Vernon Coaker will ask the first one. 

Q 73 Vernon Coaker:  Good afternoon, Lord Macdonald, and thank you for coming. I have a couple of questions to begin with on the issue of surveillance. The main driver for the Bill is the disquiet that there has been about local authorities’ use of the powers. In your review, did you see lots of evidence of local authorities using counter-terrorism powers inappropriately? 

Lord Macdonald: No. The overwhelming preponderance of evidence gathered by the review showed that local authorities were using their powers quite proportionately and in quite important areas of business—weights and measures, sale of tobacco and alcohol to under-age people, and keeping checks on the fitting of gas appliances, and so on. My impression was—I had a meeting with the Surveillance Commissioner, and he certainly was of the same view—that most local authorities’ use of RIPA powers was fairly proportionate. Indeed, if they were prevented from using them, a lot of the areas that I have just described would no longer be capable of proper investigation, because I doubt that the police would pick up much of that work. 

Q 74 Vernon Coaker:  Following your review, what evidence are the Government basing the Bill’s measures on? Given that you just said that local authorities are not misusing the RIPA powers, what evidence are the Government using to say that in order to solve the problem—which you say does not exist—judicial authority is required? 

Lord Macdonald: The Government’s conclusion is a matter for the Government, but I assume that their conclusion is based upon the view that it is critical to maintain public support for these sorts of processes. There is certainly no harm in having an additional safeguard, which judicial authority clearly provides. It is arguable that we should always have had judicial authority. If you are going to allow local authorities to intrude into people’s lives in this way, arguably, that should always have been done only as a result of judicial authority. For my own part, I was very comfortable with the conclusion of the review, which was that there should be judicial authority for such processes because they are intrusive and they interfere with the privacy of individuals. Therefore, they ought to be properly authorised and properly surveilled. 

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Q 75 Vernon Coaker:  So there has been no abuse, but you see some merit in— 

Lord Macdonald: Mr Coaker, I would not say that there has been no abuse, but we found—I saw—no evidence of widespread abuse. We all know about some of the cases that have been highlighted in the newspapers, where powers seem to have been excessively used, but if your question is about whether there is a pattern of abuse, I did not see one. 

Q 76 Gareth Johnson:  I think that you have possibly answered my question, but you touched on the point that you believed that there was no widespread abuse of the powers. Do you accept, however, that there appears to be genuine concern about them among the public that powers can be abused, and that there is a necessity for the public to be reassured? 

Lord Macdonald: Yes. I think public reassurance in this area is important, not least because the exercise of such powers by local authorities is very much in the public interest, so we do not want a situation where the public lose faith in the way local authorities are doing that, whether as a result of stories in the newspaper or because of people’s own experiences. I agree with you that public reassurance is very important. 

Q 77 Rehman Chishti:  Lord Macdonald, Mr Coaker asked about the fact that there has not been widespread abuse, but am I right in thinking that the current system is open to widespread abuse, and that, therefore, having the checks and balances through judicial mechanics would be the best way forward in striking the right balance? 

Lord Macdonald: Well, at present, what is generally required is the authorisation of a relatively senior council official. I suppose that any system is open to abuse. The insertion of a judicial process means that it is less likely to be open to abuse, so to that extent I agree with you. 

Q 78 Vernon Coaker:  Obviously, the police and intelligence services are exempt from requiring that judicial authorisation. Do you think that, given some of the recent disquiet about some of these operations and so on, you could apply the same argument about public confidence to the police and intelligence services? Or would you see that as potentially compromising those investigations, if they had to seek judicial authority for using surveillance powers? 

Lord Macdonald: As you know, Mr Coaker, there has been quite a fierce debate in Whitehall, and indeed in Government, about that over the years. Personally, I have always favoured judicial authorisations wherever possible, precisely because I think they add an appropriate level of policing to those processes, but they also raise public confidence, as your question implies. 

I am not saying that in every single circumstance where the security services or the police involve themselves in surveillance they ought to have to go to a judge—one thinks in particular of emergencies—but the balance ought to be in favour of obtaining judicial authorisations for operations that intrude so much into people’s privacy. Obviously, such operations are absolutely desirable in the public interest, but it is also in the public interest that the public have confidence in them. 

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Q 79 Nicola Blackwood:  Do you not think that the public would differentiate on the use of counter-terrorism powers between the police and security services and a local authority? Certainly, my constituents fail to understand why local authorities should be involved in counter-terrorism activities, and are pleased that there would be judicial oversight of such uses of surveillance. 

Lord Macdonald: Actually, the activities that local authorities are involved in are not strictly counter-terrorism activities. Some of the powers emanate from counter-terrorism legislation, but they are very much involved in things such as weights and measures, the sale of alcohol and so on. I certainly think you are right. I am sure the public take a different view of MI5 or MI6 conducting surveillance as opposed to Surrey county council, for example. Most people would probably say, “We are relatively relaxed about MI6 or MI5 doing it; we are not so relaxed about Surrey county council doing it,” although I do not mean to single it out unfairly. That is why the Government have come to the conclusion that there should be judicial authorisation for those. 

The Chair:  Thank you very much. We move on to pre-charge detention. 

Q 80 Tom Brake:  Lord Macdonald, you are happy that we are moving to 14 days pre-charge detention. However, are there circumstances in which you would be happy for it to go beyond 14 days? Have there been occasions in your experience where you thought that was necessary and you would, if not be comfortable with it, at least accept that it was necessary? 

Lord Macdonald: The conclusion of the review was that the evidence overwhelmingly pointed to a reduction to 14 days, and I am absolutely sure that that was the right conclusion. There was then a debate about whether there should be some means to go back up to 28 days in particular circumstances. The options were to give the Home Secretary an order-making power or have emergency legislation, and the review came down in favour of emergency legislation. 

I must say that, having looked back at the evidence, including the evidence at the time when I was Director of Public Prosecutions and we prosecuted the biggest terrorism cases, I find it quite difficult to imagine a case in which we would require more than 14 days, because the police and prosecutors have become so expert in this jurisdiction at dealing with those issues. I do not think that we needed 28 days even for Operation Overt, which was the airline plot. I think that could have been dealt with in 14 days. 

If you are going to try to imagine a situation in which we would want to employ this emergency legislation, you would be thinking about simultaneous mass-casualty attacks in a large number of cities—London, Manchester, Birmingham, Hull, Sheffield and cities of that sort or in that category—so that the police and prosecutors were simply overwhelmed. If we were in that territory, we would be in a state of national emergency anyway. An additional bit of emergency legislation to raise detention from 14 to 28 days would hardly be out of the ordinary, as we would be facing a national catastrophe in that situation. One has to imagine that sort of scenario to imagine our needing to go up to 28 days. 

Q 81 Tom Brake:  In earlier evidence from Mr Kavanagh, we heard him describe how technology is developing, getting much more complicated, and how terrorists are

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using it. He seemed to be indicating that that was one of the justifications, or reasons, why it might be necessary to push beyond 14 days, but that does not appear to be your view. 

Lord Macdonald: With respect to him, I think that is unlikely. Terrorists are getting cleverer, but so are we. We have more and more, and better and better, means of breaking into the work that they are doing. That will continue, and I am absolutely satisfied that, if anything, the distance between us and them is accelerating. That is certainly my impression from the work that I have been doing in recent years. 

Q 82 Mr Watson:  Do you accept that policy makers have been tearing their hair out over the last decade to do with the central argument about pre-charge detention, which is how long it takes to decode a hard disc drive? Might it be helpful to policy makers if the relevant authorities just listed the number of hard discs they have seized and how long it has taken them to decrypt them, so that we can get some objective information about how long it takes? 

Lord Macdonald: I agree with you. In fact, we tried to do that during the review. We asked the Crown Prosecution Service to provide detailed evidence about Operation Overt, the airline plot, because scores and scores of computers were seized in that operation. We did quite a bit of research around that. The conclusion of the review was that, on balance, we could have done with 14 days rather than 28. Some of that work is detailed in the review document itself, but not all the research has been published, for obvious reasons. I agree that there has been a dearth of evidence in some debates. 

Q 83 Mr Watson:  Okay. A slightly leftfield question, but it might be relevant to amendments that I want to table. There is a situation where private organisations can invade privacy using the technology of citizens. I am thinking of media organisations. They can hack a phone and use a public interest defence, which they say is lawful. Do you think that there is a point where an editor should require judicial authority on a public interest defence story, rather than them making the decision on whose phone to hack? 

Lord Macdonald: I have never thought about that before. Broadly speaking, I am not in favour of prior restraint when it comes to the press. This is not really the subject matter here, but the press should be free to publish as much as possible then take the consequences. I would be reluctant to say that newspaper editors ought to go and get permission from judges before they can publish stories or carry out particular techniques. 

Q 84 Mr Watson:  Should there be a greater criminal sanction, if they hack a phone using a public interest defence that proves spurious in a future criminal case—that is, a custodial sentence? 

Lord Macdonald: Well, it’s a criminal offence, and I would think that anyone who did it would go to prison. Indeed, Mr Mulcaire went to prison, didn’t he? 

Q 85 Mr Watson:  Quite a few others didn’t. 

Lord Macdonald: I am not aware of that. People who have been charged have been sent to prison. 

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The Chair:  I am fascinated by this, but we are moving on to talk about stop and search with Clive Efford. 

Q 86 Clive Efford:  Do you think that the proposals for stop and search in the Bill strike the right balance between protecting people’s civil liberties and the ability to detect and prevent terrorism? 

Lord Macdonald: Yes, I think that they do. As you will know, this all arose because of a European case called Gillan, which said that the section 44 power was unlawful. The section 44 power allowed the police to stop and search people for terrorist material, without any suspicion. In other words, they could do it on a purely random basis. The European Court said that that was unlawful. 

On the other hand, many of us thought that we could not simply abolish the power of the police to carry out without-suspicion searches. For example, let us suppose that the police had strong evidence that someone was planning to car bomb Parliament square. You might say that in those circumstances the police ought to be allowed randomly to stop cars coming into Parliament square—limited to that location, for a limited period. The review concluded that we could not entirely abolish without-suspicion searches, but we would have a without-suspicion search that was limited geographically, limited in time and pursuant to specific information about a terrorist offence. That is what the Bill seeks to achieve. I think the balance is right. 

Q 87 Rehman Chishti:  With regard to the threshold, at the moment, for a criminal offence you have to have a reasonable suspicion to arrest somebody, and therefore, with regard to a stop and search, you have the reasonable suspicion there. So it is only right and proper to have the fair balance between what a criminal threshold is and what a stop-and-search threshold should be. 

Lord Macdonald: I agree. 

Q 88 John Robertson:  Do you think that places such as airports should have different flexibility compared with other places? 

Lord Macdonald: Well, they do. There is a type of search at an airport called a section 7 search, which is quite controversial in some communities. It allows officers at airports still to search people without suspicion to gather evidence of terrorist activities. The section 7 power still exists in relation to airports. Indeed, when the case of Gillan was argued in Strasbourg, there was some suggestion during the case of argument that the parties recognised that airports were in a different category because they are major international transport hubs and require special protection. 

Q 89 Vernon Coaker:  Do you think the Home Secretary has now got the balance right in the remedial order that she passed on 18 March, given that initially she said last July that stopping and searching people would require reasonable suspicion? Do you think the balance is now right? 

Lord Macdonald: In the Bill? 

Q 90 Vernon Coaker:  The provision has already been enacted by a remedial order, which came into force on 18 March, replacing one that had come into effect only on 6 March. That seems a bit chaotic, but, apparently,

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it’s fine. I just wonder whether you think that the Home Secretary is now in the right place, or was she in the right place in July, when she required reasonable suspicion? 

Lord Macdonald: I think it’s right that routine, without-suspicion searches should stop. I think if the police have specific information about a terrorist threat in a specific location, it’s proportionate to allow the police, with authorisation, to conduct without-suspicion searches in that location for that limited period. I think that’s the right balance. 

Q 91 Tom Brake:  With the Chairman’s prerogative, I’ve been allowed to return to the issue of 14 days, as we seem to have moved swiftly through the agenda. 

We heard earlier from Mr Kavanagh that he expected the police to know within perhaps seven days whether they would perhaps seek to go beyond 14 days’ pre-charge detention. What discussions with the police and other bodies involved would you expect to happen between that point and the 14-day period to try to ensure that they did everything possible to ensure that it didn’t go beyond the 14-day period? 

Lord Macdonald: I don’t think we’re talking about a marginal situation where the police or the prosecutors, who are just as important in this situation, are thinking, “We’re going to need 15 days or 16 days.” If they think they need 15 or 16 days, they will just have to work harder and make sure they do things in 14 days. The reality is that the sort of case in which I would envisage the emergency legislation being activated would be one where you would know right at the beginning that you were absolutely overwhelmed and that you could not make things work within 14 days. 

The reality is that it would be clear not just to the police and the prosecutors, but to everybody, that we were in an entirely new situation, that we faced an enormous national crisis and, therefore, that we would have to bring in emergency legislation. I don’t really agree with him—again, with respect—that they would be making marginal calls after seven, eight, nine or 10 days. Police and prosecutors will have to order themselves and put sufficient resource into these cases so that they can come up with charges, in appropriate cases, within 14 days. I am quite sure that, apart from in the catastrophic cases I’ve described, they’ll be able to do that. 

Q 92 Tom Brake:  You’re describing a catastrophic scenario. Therefore, there would not even be the need for them to clear certain barriers and to demonstrate that it was going to go beyond 14 days? 

Lord Macdonald: I think you’d have the sort of case in which there was a unified view on the part of the Director of Public Prosecutions and the Commissioner or the head of the counter-terrorism command that it was inconceivable that this could be dealt with within 14 days and that we needed legislation. That would become apparent very quickly. As I say, if it was a marginal call, involving the odd day here or there, they would have to put more money in and work harder. 

The Chair:  Tom Watson is going to ask a couple of questions now, Lord Macdonald, on stuff that is not currently in the Bill, but the Bill could be amended in Committee, so I will allow his questions. Then we will hear from Michael Ellis. 

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Q 93 Mr Watson:  Lord Macdonald, is it your view that the Regulation of Investigatory Powers Act 2000 distinguishes between the interception of a voicemail message that has been listened to by the owner of the phone and one that has not? 

Lord Macdonald: I agree with what Keir Starmer said about this very recently. It is possible to make an argument of that sort. I have never looked into it in detail and certainly do not fall down on that side. I think he is right that you take a robust view of the law in this sort of case, and you get on with it. If the court says that you have got it wrong, the court says that you have got it wrong. 

Q 94 Michael Ellis:  Just to go back to the pre-charge detention period, we hear what you say—that it is most unlikely that there will be a degree of marginality, and that we will get to seven, eight or nine days before we realise that we cannot do it in 14, and I respectfully agree. Do you know the system that the Americans use? They have a pre-charge detention period of only one or two days, do they not? 

Lord Macdonald: That is true, but international comparisons are difficult because people have different systems. For example, the Americans use holding charges, and we do not. Our system is that we select what we hope is the right charge right at the beginning. In the States, if you want to hold someone beyond one or two days, you just file a holding charge. You can then keep them; the problem goes away. With respect, I think that international comparisons are a bit tricky. It is true to say that Australia and Canada—common-law countries that are closer to ours in their charging philosophy—have fewer than 14 days. I think that is true, but I will be corrected if I am wrong. 

Q 95 Vernon Coaker:  The proposal is that if you want to go beyond 14 days you will need emergency legislation. One thing that lawyers have raised about that is the integrity of the process, with respect to the individual who may be subject to the application, or to the reason why there has been a request to extend the 14-day period. Even as a non-lawyer I can see that issue, because in a sense we are saying, “The case of this individual is so serious that we require the extension.” How would Parliament work with the legal system to ensure that the integrity of this system was maintained, with respect to ensuring that individuals had the fair trials that we are all entitled to? 

Lord Macdonald: This is a very real concern, and I have expressed it on a number of occasions to other Committees of the House. It is a serious question, and it underlines, I think, that only in the most serious circumstances would you seek to bring emergency legislation before the House. Clearly, the danger would be that the very fact of the emergency legislation would underline the gravity of the charges against the individuals and, therefore, the precariousness of their position, in terms of the finding of guilt. All I can say to you is that I hope that it would happen only in the most exceptional circumstances, and I am sure that parliamentarians could be relied on to conduct themselves cautiously in such a situation. Emergency legislation is not unprecedented, is it? 

It would be very unfortunate if parliamentarians were to make speeches during the passage of such a Bill indicating that the individuals were guilty. It would be

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unfortunate largely because if that were done, the judge would probably stop the trial as an abuse of process, and they would all go free. I think that parliamentarians would want to understand that they could sabotage the trial if they were not careful, and I would hope that people would take that message seriously. The same would apply to the House of Lords, obviously. 

Q 96 Vernon Coaker:  I think that is a very fair answer. This is almost about how you would prevent the noise around the fact. There are very clear rules about what can be reported in papers, and what can be said when a trial is going on. It is almost about the atmosphere that has been created around individuals because of the very nature of the request to Parliament to have the emergency legislation put in place. 

Lord Macdonald: It is a very sensitive aspect of the recommendations. 

Q 97 Nicola Blackwood:  I am very conscious that a lot of the discussion about pre-charge detention has been based on hypotheticals—on what might happen if this happened or if that extreme situation occurred. Do you think it is important that as we proceed in this very sensitive area of legislation, we base things as much as possible on the evidence of experience and on the ways in which we have needed to use these powers in the past? 

Lord Macdonald: I think that is right. As I said, for the review we gathered a lot of evidence from the Crown Prosecution Service and elsewhere about what had happened in the past, and we also tried to imagine scenarios looking into the future. For example, I looked at all the current threat assessments, and members of the review team are obviously aware of them. We did factor that in, but I agree that it is very important not to be seduced by imagining more and more lurid possibilities for the future, because that is a justification for all sorts of very oppressive legislation. You have to look ahead, but you profoundly have to root your legislative proposals in experience. 

Q 98 Mark Tami (Alyn and Deeside) (Lab):  May I take you back to Mr Coaker’s point about the fact that the nature of an emergency may mean that you are effectively legislating on that, rather than on the actual principle? As you say, there will be a distinct possibility that, either intentionally or inadvertently, any hon. Member debating this matter in the Chamber could stray into an area that could subsequently affect a case. Is that not one of the problems of legislating on individual cases? 

Lord Macdonald: It is, although I would have thought that the thrust of the debate would be about process, and the extent to which it was such a big case involving so much material, and how well police and prosecutorial resources could cope, rather than a discussion about the merits of individual cases and the guilt or innocence of those involved. As long as both Houses of Parliament restricted the debate to those sorts of process issues, I would have thought that the danger would be less. If either House got it terribly wrong, the trial could be sabotaged. 

The Chair:  The Minister has the final word. 

Q 99 James Brokenshire:  Lord Macdonald, you have set out the basis behind this, and the role of Parliament has been raised in Committee this morning. You have

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clearly considered carefully whether Parliament should make the decision, or whether it should be made through other means. Perhaps you might conclude by sharing your thoughts on why you believe this is the best approach, rather than any other mechanisms that would appropriately cater for the situation. 

Lord Macdonald: The alternative mechanism was to give the Home Secretary an order-making power. The review concluded that that would be undesirable, because what is, in essence, done at the moment by an independent prosecutor—that is, requesting an extension from the court—would be handed over to a member of the Executive, a senior Minister. There was a feeling that that would be an undesirable intrusion into the trial process by a very political figure—the Home Secretary—who deals with the most sensitive issues, and the review concluded that such a development might not win public confidence. The review also felt that it was likely to be such a rare occurrence that emergency legislation was the appropriate route, not least because we could imagine such a process being necessary only in a real state of national emergency. That was the thinking. I am sorry if I have not made that clear, but that is the way we thought it through. 

The Chair:  I thank you on behalf of the entire Committee for such robust and clear answers. 

12.28 pm 

Q 100 The Chair:  Sir Paul, welcome. Perhaps you will introduce yourself for the record. 

Sir Paul Kennedy: I am Paul Kennedy. I am the interception of communications commissioner, and previously I was a member of the Court of Appeal. You have my biographical details, Mr Streeter. I apologise for the fact that you do not have anything in writing about what I might say. I have just come back from abroad, so I did not have the opportunity to put anything in writing. If you will forgive me, I might talk for a few minutes about what I want to say, and then answer any questions that anybody wants to put to me. Would that be helpful? 

The Chair:  Yes, thank you. 

Sir Paul Kennedy: I head a team of trained inspectors—a chief inspector and six others—that has been in existence since 2005. They inspect, on my behalf, local authorities in relation to communications data. We are talking about clause 27 of the Bill, and ultimately, schedule 7, paragraph 7, which we may look at towards the end. 

The first and most important point is that local authorities have no power to intercept; they cannot listen to anybody. They do have limited power to gather communications data—to whom a mobile telephone belongs and certain other information about its use—but they have no power to obtain what is called field traffic data about where the mobile telephone is when it is being used. They therefore have a limited amount of power. As far as we are concerned, inspecting local authorities is a small percentage of the work. We have calculated that that takes a fifth of one inspector’s time over a year, though one inspector does not do it all. It is actually relatively small. 

Almost all the authorities that use communications data have been inspected since the inspectorate came

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into existence in 2005; 27 were inspected in the last calendar year. I emphasise that the inspectors have found no evidence of abuse. They do not use this power in relation to trivial matters and when they use it, they use it proportionately. It is mainly used by trading standards departments and fire and environmental health departments in relation, for example, to rogue traders, those who are abusing housing benefits, fly-tippers—that kind of community disadvantage. There are two quite good examples given in my last annual report, published in 2009; they are in paragraph 3.45 and relate to two particular local authorities, but they give a good flavour of the work. 

The Chair:  Sir Paul, it may be that colleagues can look at that themselves. 

Sir Paul Kennedy: Could you? I am happy to let you do that: it is paragraph 3.45 in the 2009 report. 

The Chair:  That will be compulsory homework for everyone on the Committee; thank you. Nicola Blackwood will lead with our first question. 

Sir Paul Kennedy: If I may continue with the rest of it— 

The Chair:  Sir Paul, I think questions and answers might be more appropriate, if you do not mind. Nicola Blackwood. 

Q 101 Nicola Blackwood:  Thank you, Sir Paul, for your very helpful summary. 

Sir Paul Kennedy: That was only the start. 

Nicola Blackwood:  Your helpful start of the summary. Could you give us some recent figures for the authorisations that have already been made by local authorities, in terms of surveillance under RIPA? 

Sir Paul Kennedy: So far as 2010 is concerned, 134 authorities made 1,811 requests. That is a very slight increase on the previous calendar year. 

Q 102 Nicola Blackwood:  Have those varied since the introduction of the Act? Have they increased? 

Sir Paul Kennedy: A little bit. They have tended to rise. For what it is worth, I think too few make requests. I know that is not a popular view, but I can explain that if you wish. 

Q 103 Nicola Blackwood:  Okay. Do you agree that it is important that the public perception of the role that their local authority plays in relation to confidential data is carefully considered in the Bill? 

Sir Paul Kennedy: Of course, yes. 

Q 104 Nicola Blackwood:  And do you not accept the fact that the public consider that local authorities have too many powers in all sorts of areas? 

Sir Paul Kennedy: They may do, but they are wrong. 

Q 105 Nicola Blackwood:  You do not think that it is important for local authorities to have the trust and confidence of their constituents? 

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Sir Paul Kennedy: Of course, but this is a specific power that they ought to have, and do have, and they use it properly. 

Q 106 Vernon Coaker:  Sir Paul, you said in your answer to Nicola Blackwood that too few requests were made. Will you expand on that? 

Sir Paul Kennedy: There are 433 local authorities that have the power, some of which are quite small. They need to use it when they have the sorts of problem that I was talking about, such as fly-tipping. The procedure requires them to go through hoops: the applicant has to put his case to the single point of contact, and the SPOC has to get the designated person’s approval and then go to the service provider to get the information. That is not a big deal, but on the other hand it is a procedure that they have to follow. In reality, I suspect that local authorities that use their powers twice a year either forget the procedure or get nervous about it and simply do not use it, and so the fly-tipper simply does not get detected. That is only an inference, but one that can be derived from looking at who uses it and who does not. 

To some extent, that has been importantly addressed. The local authorities have a body called the National Anti-Fraud Network, and they have used it to form a central body—one based in Tameside and one in Brighton—to which local authorities can go to do the job for them. Effectively, they can ring up and say to the National Anti-Fraud Network, “Will you act as single point of contact, see whether this is an appropriate case in which to seek authorisation, and do the groundwork for us?” Now 50 local authorities have signed up to NAFN, which, incidentally, was funded by the Home Office, so money has been spent setting it up. We have inspected NAFN and, in our estimation, its performance is Rolls-Royce. There is no difficulty about what happens through it. We encourage the others, as far as we can, to use NAFN. 

Q 107 Vernon Coaker:  Given that you think the system works pretty well at the moment, and that there is not much sign of abuse, what do you think of the proposals in the Bill to require local authorities to seek judicial approval? 

Sir Paul Kennedy: I am wholly against it. It is wholly unnecessary and will cost money. I repeat the figure: 1,811. The Home Office put on the website the cost of this exercise: 20 minutes of judicial time at a cost of £365 an hour. I did the arithmetic; it is £250,000 a year for this exercise for local authorities on the magistrates court and Ministry of Justice side alone. I cannot say this with confidence about other areas in which we work, but in relation to local authorities, we have audited almost every application they have made. However, where there are only two or three applications, we look at them all. With the bigger authorities, one cannot say quite the same thing, but we have audited a very large percentage of the applications over the last six years and there is simply no evidence of abuse, so there is no problem on which to spend £250,000 a year. 

Q 108 Mr Watson:  Sir Paul, you are a very distinguished individual. I, unfortunately, am a cheeky Back-Bench scamp. Please forgive me for asking these slightly forward-leaning questions. On the basis of what you have just

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said, is it your view that local authorities could significantly bring down the cost of housing benefit bills by taking down more housing benefit cheats than they currently do? 

Sir Paul Kennedy: I am guessing, but if they used the powers more, they would detect more housing benefit fraud. 

Q 109 Clive Efford:  Most of what I was going to ask has already been answered. A lot of the examples that have been given to justify this section of the Bill have been things like bin-snoopers. In one particular case, a local authority investigated someone sending their child to a school. It believed that the person did not live in the catchment area and had no right to apply for that school. Did you investigate that particular case, and did you find that that was not an appropriate use of powers? 

Sir Paul Kennedy: No. May I make a very clear distinction? I only deal with communications data. The case you are citing is surveillance. I make no case in relation to surveillance; I know nothing about it. Another commissioner deals with that. I hope that answers the question. 

Q 110 Rehman Chishti:  In terms of checks and balances and individuals’ freedoms, do you not think that it is right and proper to have a checks-and-balances process, in which the local authorities have to go through a judicial process for that checks-and-balances measure to be overseen? 

Sir Paul Kennedy: May I return the question? Why, if it is properly audited afterwards? 

Q 111 Rehman Chishti:  Is it not the case that in the system at the moment, although you do not have evidence of substantial abuse— 

Sir Paul Kennedy: We do not have evidence of any abuse; let me make that absolutely clear. 

Q 112 Rehman Chishti:  Absolutely, but the system is open to abuse. In any system, having checks and balances would be the appropriate way forward. 

Sir Paul Kennedy: I would hope that if the system was abused, we would find it and report it in our annual report. Where you have no abuse, why spend £250,000 a year? In a sense, that is the point that I am here to make this morning. 

Q 113 Tom Brake:  You stated earlier that you thought that local authorities were not using the powers often enough. What evidence do you have that there are lots of cases— 

Sir Paul Kennedy: Frankly, you are quite right. There is no hard evidence of that. The only thing that one can say about that is that some authorities use this power and others do not, and they are of similar size. As a matter of common sense, I do not believe that there are people engaging in housing fraud in Leicester but not in Nottingham. 

Q 114 Tom Brake:  Could it be that the other local authorities are tackling this problem in a different way and not relying on communications data? 

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Sir Paul Kennedy: To some extent, that is right and that is a point that I also want to make. There are other powers, under the social security Acts for example, to get the same type of information from a mobile telephone number. For some time, we have tried to prevent—we cannot prevent, but we can discourage—local authorities from using those powers, because there is no oversight at all of them. Although RIPA in 2000 was intended to create a requirement of oversight across the board, the way in which law always operates, as you all know, is that a subsequent Act takes precedence, as it were, over the previous one and the social security legislation happened to be post-2000, and is therefore not caught by RIPA, which says that you must go this way. 

Mr Watson:  I am enjoying the way that you are dealing with the lawyers on this Committee. I would like to invite you back again, if that is okay. 

The Chair:  Question, please. 

Q 115 Mr Watson:  I think that you might have identified new freedoms that we need to find in this stupendous Bill. Would it be possible for you to give us the clauses in the Child Support, Pensions and Social Security Act 2000 that you would like local authorities—? 

Sir Paul Kennedy: Off the top of my head, I cannot. However, I can certainly let you have that information. 

Q 116 Michael Ellis:  Sir Paul, are you concerned about the public having confidence in systems such as this one? You have been a distinguished judge and you are a distinguished servant of the Crown. But are you conscious of the fact that politicians and those who serve the public in other capacities are keen for the general public to have confidence in our systems of management, particularly when it comes to such things as the interception of communication? 

Sir Paul Kennedy: But of course. I have said in successive annual reports, which are published and seen by Parliament, that there is no evidence of abuse in this area. As I say, I am not here to say anything about surveillance or any other area in which there is abuse. However, where there is no evidence of abuse you are entitled to say it—are you not?—just as much as I am. 

Q 117 Michael Ellis:  There may be no evidence that you have come across— 

Sir Paul Kennedy: “Camouflaged”? 

Q 118 Michael Ellis:  No, that you have come across. [ Laughter. ] You assumed that I said “camouflaged”. That is rather telling, Sir Paul. 

The former Home Secretary, Jacqui Smith, referred to “dustbin Stasi” and things of that sort. This is not a political one-sided issue here. Sir Paul, what we have to be focused on—do we not?—is the misuse of powers by the state and the perception of misuse. 

Sir Paul Kennedy: Well, I think you are entitled to say what I have said to you, that we will deal with it where we have evidence that it exists but that there is no point in spending money dealing with what does not exist. 

Q 119 Mrs Jenny Chapman (Darlington) (Lab):  On the issue of public confidence, it seems that some Members have taken the view that there has been damage to

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public confidence in some of these issues. Do you think that that is true and, if so, where do you think that that lack of public confidence might have come from, given that you think that it is not based on evidence? 

Sir Paul Kennedy: If it is in relation to the work that I oversee, I see no evidence and therefore I have no idea where it has come from. If I can try to answer the question, what I think it has come from is that people have not distinguished between, for instance, surveillance and the acquisition of communications data. It is a technical distinction and therefore, if I may say so, it is understandable that the tabloid newspapers do not make that kind of distinction. However, it is an important distinction for this area, because it is only in relation to the communications data that I say that there is no point in spending money dealing with something that is not a problem. 

Q 120 Mrs Chapman:  So you think that some of these issues have been conflated with others by the press? 

Sir Paul Kennedy: I think so. This is a slight digression, but in relation to one of my annual reports they conflated all of the figures in relation to interception generally and suggested that people were listening to mobile telephones in numbers that we do not have the population to do it. It just becomes ridiculous. 

Q 121 Michael Ellis:  Would you accept, Sir Paul, that there are other ways of detecting crime than the interception of communication? Would you accept that there are other democratic countries that detect crime by an alternative route? 

Sir Paul Kennedy: Sometimes, but often not. In relation to the type of work that I am concerned with—that is what we are talking about here, although it concerns a lot of other things—the fact is that, if you put yourself in the position of a householder, through the letterbox comes a card with a mobile number on it. It says, “I will take away all that unwanted rubbish in your garden, just dial this number”. The rubbish is taken away and fly-tipped, and the only lead you have is the mobile number. If the Bill comes into effect, in order for a local authority to discover to whom that mobile number belongs it would have to go to a magistrate. So I do not think it is necessary. 

Q 122 Michael Ellis:  Would there not be alternative methods for discovering fly-tipping, such as witnesses or closed circuit television surveillance? There are alternative methods under your scope, are there not? 

Sir Paul Kennedy: No. Closed circuit television is nothing to do with my remit. 

The Chair:  I detect a sudden flurry of interest. I hope that colleagues will be brief with their questions. 

Q 123 Mr Buckland:  Sir Paul, you have quite properly confined yourself to the area of your competence with regard to communications. As you have acknowledged, the proposed reforms would require judicial approval for not only that, but directed surveillance and covert human intelligence sources. I am going to put it simply: would it not be an anomaly if we left the area that you cover out of any proposed reforms to the other two areas in which there is evidence of mischief? 

Sir Paul Kennedy: No. 

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Q 124 Mr Buckland:  Why not? 

Sir Paul Kennedy: Because you are entitled to say there is no evidence for abuse in this area. 

Q 125 Mr Buckland:  But those three areas go together, do they not? To have one exemption would be wholly anomalous. 

Sir Paul Kennedy: Forgive me, but they do not go together so far as the commissioners are concerned. They only deal with one. 

Q 126 Mr Buckland:  That is a matter for you, Sir Paul. 

Sir Paul Kennedy: No, that is what Parliament has ordained in the Act. 

Q 127 Mr Buckland:  Indeed, and it is a matter for Parliament to look at the whole position. It is not Parliament’s job to have anomalies, which I suggest you are advocating. 

Sir Paul Kennedy: No, I do not regard this as an anomaly in the slightest. 

Q 128 Nicola Blackwood:  Sir Paul, it is very interesting to hear your evidence given that we have just heard from Lord Macdonald, who expressed a confident opinion that the interception of communications is so intrusive that it justifies judicial oversight as a point of principle. Why do you come to a different view? 

Sir Paul Kennedy: Well, proper interception of communications, so-called, requires a much more rigid form of approval than we are talking about here, and I understand that entirely. Here we are talking about what you do with a telephone directory effectively, except that it relates to mobile telephones. Most of the applications we are talking about are local authorities asking, “Who owns this mobile?” 

Q 129 Nicola Blackwood:  Do you not think that part of the reason there is such a lack of public confidence—as a constituency MP I can say from my inbox that there is—is that there are so many different versions of rules and regulations relating to different forms of interception? Do you not think that simplifying it would reassure the public and allow a sense of confidence that would be valuable to local authorities in developing their intelligence in these areas? 

Sir Paul Kennedy: Well, that is what you are proposing, and I am not saying anything about the proposals in relation to surveillance. So be it. So far as this area is concerned, there is no need for it, but you are entitled to say what you have said. 

We have hard evidence—it is not a question of guessing—accumulated over a number of years that there is no abuse in this area. Furthermore, what is the proposal in relation to my function? I am not empire-building—I do not care about losing this area because, from that point of view, it represents a fifth of one inspector—but what is the position in relation to the proposals in the Bill? Paragraph 7 of schedule 7 states that I have no power to review the decision of a magistrate. Fine, I would not have asked for it. But what happens if my inspectors find that a magistrate has authorised a

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procedure that they consider to be unjustified and it then goes into my annual report? I still have a duty under section 57(2)(b) to review, 

“the exercise and performance, by the persons on whom they are conferred or imposed, of the powers and duties conferred or imposed by or under Chapter II of Part I”. 

That is all rather legalistic, but I still have a duty to go in. 

Q 130 Vernon Coaker:  I have a very simple question, Sir Paul. You said that in 2010 there were 1,811 requests. Do you have the figures for the previous years? 

Sir Paul Kennedy: I do, but I would have to look them up. Last year was 1,700 and something, so it has gone up slightly. The figures will now become slightly more difficult because of the intervention of NAFN. Some of the figures will be collated centrally, and the others will be retained by the authorities that make use of their powers directly without using the central agency. If you want, we can provide the figures since 2005. 

Vernon Coaker:  It would be helpful, if you would not mind. 

Sir Paul Kennedy: They are all, incidentally, published in my annual report. I will get them out for you. 

Vernon Coaker:  I agree that I am being lazy in asking for them, but it would be helpful. 

Q 131 Steve Baker:  Is there a place in society for objection in principle to particular powers and procedures? 

Sir Paul Kennedy: Of course: say, “You cannot do it.” 

Q 132 Steve Baker:  So we seem to be having a conversation in a very utilitarian way about evidence, which is fantastic. It is the usual course of things. We also seem to agree that there is a place for objection in principle to the existence of certain powers. 

Sir Paul Kennedy: Oh, you can say, “Local authorities shall not investigate these types of offences.” That is all right, but it means that the public are not protected against them. 

Q 133 Steve Baker:  Or we could say that they may investigate these particular offences but we will protect them and restore confidence by requiring judicial approval, in principle. 

Sir Paul Kennedy: In principle, yes. I am a great supporter of magistrates but I do not see what they give to what happens already in this sphere. 

Q 134 Mr Watson:  Sir Paul, were you surprised to see this piece of gold-plated regulation in the Bill? 

Sir Paul Kennedy: Yes. I have been quite consistent in saying that in my area it is not required. 

Q 135 Mr Watson:  And have you had representations from either the Local Government Association or the Department for Communities and Local Government on this? 

Sir Paul Kennedy: Not directly, but I know perfectly well that local authorities are not in favour of this change. I gave you figures in relation to the costs to the

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Ministry of Justice. It says in what has gone on the website by the Home Office that there will be no appreciable costs for local authorities but I am afraid, with respect, I do not accept that. A local authority has to prepare a document to present to a magistrate. Somebody has to go and present it, and in a slightly cynical judgment my guess is that local authorities will save themselves the cost of doing it by not using the power they ought to be using. 

Q 136 John Robertson:  Sir Paul, I have been very interested in what you have been saying. Would you accept that what some colleagues have been saying to you is actually changing the law by perception rather than by evidence? 

Sir Paul Kennedy: Yes. 

Q 137 John Robertson:  Is there not a place for that within the system? 

Sir Paul Kennedy: Well, you can do it, but I think first of all it is expensive, and I do not think it is justified. You have got to be realistic about this kind of thing, and the hard evidence does not justify this change. 

Q 138 John Robertson:  And is this where your quarter of a million pounds cost comes in, in that you would say that perceptions should not cost a quarter of a million pounds? 

Sir Paul Kennedy: That is right; precisely that. 

Q 139 John Robertson:  I wonder if you would say then how your part of the communications comes into the system, and how it could be excluded from the Bill. 

Sir Paul Kennedy: I have not done the draft clause and I would not presume to do so, but it is a possibility that is canvassed. It was considered whether we should leave out someone and the only reason that was given, as I remember, for not making this distinction was that there had been parliamentary will not to do it. 

Q 140 John Robertson:  Following on from my colleague, Mr Watson, in asking further details, it is obviously a disappointment, having heard what you have been saying, that we did not have something beforehand. Could you perhaps give us your ideas on where your communications side will come into the system? 

Sir Paul Kennedy: What would you like from me? 

Q 141 John Robertson:  As much as possible, by the sound of it. Anything that can improve the Bill would be helpful. 

Sir Paul Kennedy: I have said all I wish to say, but I can certainly put it in written form. 

Q 142 Michael Ellis:  Sir Paul, laws are enacted all the time, are they not—and certainly have been by the previous Government—to act in a preventive way, or to seek to do so? Further to questions that have been asked by colleagues on both sides, do you accept that there is scope to prevent abuses? We know that there have been abuses in other areas outside your remit—for example, in surveillance other than in communications. Do you accept that, as a first question? 

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Sir Paul Kennedy: In principle, yes; in practice, no, I do not see any justification for it. You have to look at how the power is used. As I said, it is used to get a mobile telephone number for a rogue trader. 

Q 143 Michael Ellis:  But we ought not necessarily to wait for misuse of a system before doing something to remedy a defect. Should we not act with regard to how things should operate, even assuming that they are operating perfectly now? 

Sir Paul Kennedy: In one sense, of course, you are right. On the other hand, it seems to me to be total overkill. 

Q 144 Michael Ellis:  You say “overkill”, Sir Paul. In your role as interception commissioner, do you ever take evidence or speak to members of the general public on these issues? 

Sir Paul Kennedy: I speak to members of the general public often, but not directly in relation to the role. The vast majority of my personal role is in relation to material that would not be accessible to the general public in any shape or form. 

Q 145 Michael Ellis:  So you have no contact with the general public, other than in your personal capacity. In your role as interception commissioner, you do not take evidence from the general public on these matters. 

Sir Paul Kennedy: No, of course not, but, on the other hand— 

Q 146 Michael Ellis:  Why “of course not”, Sir Paul? 

Sir Paul Kennedy: I read the newspapers, the same as you do. I know precisely what has been going on in this area. 

Q 147 Tom Brake:  I just wonder, Sir Paul, whether you have ever sat down with someone who has had the powers used against them and asked them whether they felt that it had been an abuse of power. 

Sir Paul Kennedy: The only sort of people whom it is used against is rogue traders. 

Q 148 Tom Brake:  Allegedly. You are confident that all 1,811 people who have been subject to these powers fall into that category. You know that for a fact. 

Sir Paul Kennedy: They are not necessarily rogue traders, but they fall into the categories that I have defined, yes. 

Q 149 Michael Ellis:  Sir Paul, forgive me. You have been a lawyer for many years, I presume. Surely they are allegedly rogue traders until they are proven guilty. You are innocent until proven guilty. 

Sir Paul Kennedy: Of course. I entirely agree, but on the other hand, if the number is given to us by a complaining member of the public as the number on the card that was put through their door, that is how we investigate it. 

Q 150 Michael Ellis:  You assume guilt. 

Sir Paul Kennedy: No, no. 

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Q 151 Michael Ellis:  What happens if it is a malicious complaint, Sir Paul? What happens if— 

The Chair:  Michael, thank you. 

I sense, Sir Paul, that we are coming to the end of our question and answer session. We would like to thank you very much indeed for your frank and colourful answers, which have delighted and interested the Committee greatly. 

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Sir Paul Kennedy: Thank you for agreeing to hear me. 

The Chair:  It has been a great pleasure. 

Ordered, That further consideration be now adjourned. —(Jeremy Wright.)  

12.57 pm 

Adjourned till this day at Four o’clock.