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Lord Goodhart: My noble friends and I have put our names to Amendments Nos. 153 to 155, 156 and 159, either as the lead names or together with the
Conservative Front Bench. We entirely agree with what the noble Lord, Lord Dixon-Smith said. The argument that these powers should be restricted to dealing with terrorist problems has been made many times. It has been supported by speakers on all sides, both at Second Reading and in Committee. I do not think there is any need for me to take it further.
Lord Alexander of Weedon: I apologise for the fact that this is my first opportunity to take part in the Committee stage. I declare an interest as chairman of Justice, the all-party law reform group, which has extensively briefed many Members of the Committee on the Bill. I had no part in the preparation of the briefing. Justice accepted that the purposes of the Bill were such as potentially to justify derogation from the Human Rights Act if, and only if, the Bill was proportionate and was focused sharply on the terrorism committed on 11th September. As the noble Lord, Lord Goodhart, stated, many of the Bill's provisions go wider than that.
Members of the Committee heard yesterday that the Delegated Powers and Regulatory Reform Committee, of which I have the privilege to be chairman, protested most strongly about Clauses 110 and 111 having nothing to do with the emergency arising on 11th September. On that basis, I content myself with saying that each time we fail to narrow the purposes of the Bill, we lessen the prospect that our derogation from the Human Rights Act will be held to be justified. Each time we fail to narrow the purposes of the Bill, we dent civil liberties. I support the amendment.
Lord Clinton-Davis: I support the remarks of the noble Lord, Lord Alexander. The Minister has to convince me—and, I hope, others like me—that the derogation he seeks is justified. Like the noble Lord, I am worried about the breaches of freedom signified by this approach.
In both Houses, I have long been a supporter of civil liberties. The Minister has to approach people like me as having an open mind. But at the moment the view broached by the noble Lord is not a fanciful one. We are deeply worried by the Government's approach. The focus on terrorism ought to be applied in this case—and it is not.
3.15 p.m.
Lord Beaumont of Whitley: Three of the amendments in this group stand in my name. I apologise to the Committee for not being able to be present yesterday. A series of rather attractive operatic events in Budapest coincided with the international meeting of the Green parties of Europe.
My Amendment No. 155A is a de minimis amendment. It seeks to ensure that this legislation does not apply to matters which are extremely small and which should not be included in this area. I am sure that they are covered by the major amendments in the group which have been spoken to.
My Amendment No. 158ZA deals with a more specialised point. There are plenty of instances on record where the police have requested that people take off face coverings and have not given them time to do so before arresting them. The amendment is intended to meet that point and to make sure that it is not a crime to be slightly slow in obeying a request that a person may not have understood in the heat of the moment. That can apply at protests on ecological (or green) grounds rather more than in instances relating to the kind of terrorism with which the Bill mainly deals.
Amendment No. 158ZB attempts to remove the penalty of imprisonment, as opposed to a fine, for such minor offences. I speak on behalf of my party when I say that we strongly support all the major amendments in the group. I hope that the Government will see reason.
Lord Marsh: I should be grateful if the Minister would address a fundamental point. All the amendments have one thing in common which has informed the remarks that we have heard so far. The trend is to interpret the word Xemergency" as synonymous with Xtemporary".
The point is fundamental because many people do not believe that what happened on 11th September left behind it a Xtemporary" situation to be dealt with over a limited period of time. Many people believe that it changed the whole approach to the fight against terrorism. There has been a recognition that terrorism now has resources—both financial and in terms of following and commitment—on a scale previously unknown. If that is the case—and it is certainly my position—we have to examine the question of civil liberties and rights, and of their erosion, in a different way. We must take on board the fact that we live in a different society, that the threats are much greater and that some thousands of people have been killed—that is not an emotive point. It is recognised that the resources, skills and finance available to carry out such offences are greater than we have ever known, as is the commitment to carry them out. Secondly, those who perpetrate the crimes have made it very clear that they have the ability and the commitment to repeat them, not only in this country or in the United States but in other parts of the world.
I should like to know the Government's view. If this is a passing phase and we shall grow out of it, then of course we can afford to continue with the liberal regime that we have had, totally unchanged. If we do not regard it as a temporary phase, then we must make some changes. I do not argue for one side or the other. There will be different views; I should like to hear the Minister's.
Lord Clinton-Davis: Why cannot there be primary legislation later to deal with the noble Lord's point?
Lord Marsh: That is not my point. I am raising a more fundamental point, which can be dealt with—or not—in primary legislation. Depending on the view
that we take of the importance of the present situation, it may be felt that primary legislation should follow later.
Lord Elton: The noble Lord is speaking well outside the scope of the amendments and of the Bill. This is emergency legislation that is being discussed in haste. I ask the noble Lord to wait before responding, just as I waited for him to finish before I made my comments.
Lord Marsh: I was just moving to make myself more comfortable.
Lord Elton: I hope that he will be comfortable when we have finished.
The Bill is being taken through Parliament in a rush. When one is in a rush, one is prepared to accept limitations of liberty because there is an emergency, which will last for a short time. After that, we will have an opportunity to deal with the circumstances that may prevail for a long time. That is when the noble Lord should make his speech, not now.
Lord Marsh: I have tried to make it clear that I was talking about the definition and perception of the word Xemergency", which has, quite properly, been used frequently in relation to the amendments.
Lord Rooker: We have reached Part 10, which deals with police powers. Far be it from me to criticise, but I have not heard any case made for the amendments, so I am having some difficulty in responding to them. The general thrust seems to be that we should not extend police powers in the way proposed in Part 10. I say that we are extending police powers, because by and large the powers in this part are not new, but are extensions of existing powers. That is an important point.
Following the first part of the comments of the noble Lord, Lord Marsh, I hope that it is accepted from the public evidence available that the events of September 11th had clearly been in planning for years, not just for days, weeks or months. We do not yet know what was planned years ago for next year. That is the problem. That is why we are taking precautionary measures as quickly as we can and extending powers. I do not accept the extravagant language that has been used outside your Lordships' House that this is the end of liberal democracy. Our liberal democracy is strengthening its powers to secure and maintain itself as a liberal democracy. I will argue that in any forum. If we did not take some precautions, we would be failing in our duty as a government and as a Parliament.
The amendments on the central issue of the extension of police powers are all neatly grouped together. I shall not go down the highways and byways of all the nuances of the changes. There are several clauses involved and the amendments cover some of the issues. It is important to put on the record the reasons for the content of the clauses. I shall briefly address most, if not all, of the amendments and answer any questions that there may be.
The first three amendments in the group—Amendments Nos. 152A, B and C—relate to Clause 89, which amends the Terrorism Act 2000 to allow the police in Scotland to examine fingerprints and DNA samples taken under the powers of that Act when investigating crime generally. At the moment, those records can be searched only if the police are investigating suspected terrorist offences. There is therefore a risk that they will miss connections between terrorist suspects and what I would call ordinary, common or garden criminal offences that may be committed as an adjunct to terrorist activity. For example, a van may be stolen for use as a bomb, but recovered without any evidence of its intended terrorist use. Believe it or not, it would not currently be possible in Scotland to check any prints or samples against those of all previous terrorist suspects, even though that might reveal the true purpose of the theft.
That change was introduced for England and Wales in the Criminal Justice and Police Act 2001. Unlike in England and Wales, in Scotland only prints and samples taken under anti-terrorism provisions can be retained if the suspect is not subsequently convicted. Prints and samples taken under other powers must be destroyed. The amendments would constrain the police to using those prints and samples only for terrorist investigations, as is currently the case. They would therefore undermine the purpose of the provision and we shall resist them.
Clauses 90 and 91 give the police necessary additional powers to search and examine persons in detention who will not say who they are or about whose identity there are reasonable doubts. I hope that it is accepted that the investigation of crime and the prevention of further crime can be impeded if it is not possible to make reliable identification. The police also need a specific power to seek identifying marks that would tend to identify a detained person as being involved in the commission of an offence.
Amendments Nos. 153 and 154 would limit those powers to circumstances in which the person was detained in connection with a terrorist investigation. I hope that the flaw in that approach is obvious to the Committee. If the new powers are to be fully effective in supporting the fight against terrorism, we have to take account of the fact that an involvement in or connection with terrorism may become apparent only once the identity of the person is established. To the extent that the powers are relevant in determining or verifying a detained person's identity, they have the potential to reveal important links with terrorism that were not previously suspected.
We want to stop terrorists or their supporters being able to slip easily through the police net. We are adopting a precautionary approach with a modest extension of existing police powers. I accept that in some exceptional circumstances such examinations could prove intrusive. The power to examine someone for an identifying mark to prove their identity could be intrusive. We shall issue guidance to the police about how they should approach situations in which identity cannot be established.
The first option is to search through personal belongings and effects for clues. That is the normal approach. If that was not helpful, the next step would be to take fingerprints and photographs. Only if those logical steps drew a blank should the police consider the possibility of a body search for possible identifying marks. Properly used and supported by appropriate guidance, these expanded powers could be very useful in seeking to identify people in connection with investigations.
This may not come as a surprise to some of your Lordships—although it certainly came as a surprise to me, because in 27 years as a constituency Member of Parliament, I had never come across the fact—but without the new powers in Clauses 92 and 93, the police will continue to be unable to photograph a detained person who is unwilling to co-operate and who successfully obstructs the process in some way. We are talking about mug shots taken in a police station. I had thought that the police had the legal right to make sure that they could take a photograph, but that is not necessarily the case.
Taking a photograph can be a critical aid to identification or to detection or prevention. For example, it may be desirable to circulate a photograph of a suspected terrorist to areas where relevant offences are being investigated. More directly, the photograph could be compared against existing records. Such records could be at a location remote from the police station in question. It would be self-defeating to limit the powers to circumstances in which a person was detained in connection with a terrorist investigation. Crime is used to fund terrorism. There may be a crime and criminal activity, but the criminal concerned does not know that he is part of some terrorist funding operation. He may just be a jobsmith criminal. It is important to the authorities to be able to continue to investigate in those circumstances to see whether there are links. It may be apparent only when we have the identity of the person by taking photographs to see whether terrorist links are thrown up.
These new powers will help to ensure that such criminals do not pass through custody unrecognised. They will allow for the use of reasonable force to remove items or substances worn on or over the head or face of the person to be photographed. Such removals will need to be handled with the utmost care, which is self-evident. There needs to be sensitivity to individuals—after all, we are dealing with fellow human beings—and sensitivity to cultural or religious issues. We shall give the police full guidance on that area of activity.
The basic power to take a photograph of a detained person is not a radical intrusion on the rights and freedoms of citizens of this country. It can make a substantial contribution to helping to ensure that terrorists and their supporters are caught and that such activity is prevented.
Amendment No. 155A would restrict the use of photographs and would prohibit their use in cases involving breaches of the peace, obstruction of the
highway and minor criminal offences under Sections 4 or 5 of the Public Order Act 1986, referring to the use of threatening, abusive or insulting words. The amendment of the noble Lord, Lord Beaumont, seeks to limit the use and disclosure of photographs that were taken by a person involved in such activity who was subsequently arrested. The amendment is unnecessary, as it is not the Government's intention that the police or anyone else should circulate photographs of people who are arrested for offences against all and sundry. The taking of a photograph is somewhat less intrusive than the taking of fingerprints, and Clause 92 proposes limitations on the use and disclosure of photographs in exactly the same way as fingerprints.I assure Members of the Committee that the issues surrounding the use and disclosure, and indeed the retention of photographs, is a matter that the Home Office is considering very carefully, together with the relevant ACPO working groups. We shall issue new guidance on all the new provisions in due course, and there will be specific guidance on the treatment of photographs.
Clauses 94 and 95 provide extended powers to allow a police inspector to give authorisation to officers to require the removal and seizure of face coverings that are worn for the purpose of concealing identity. The authorisation applies only to a particular locality and could last for 24 hours, with an extension of a further 24 hours. Before giving the authorisation the inspector must reasonably believe that the activities may take place in a specified locality within his police area and that such activities are likely to involve the commission of offences.
The power to remove face coverings in a designated area already exists; this is not a brand new power. We are amending the test from reasonable belief that serious violence may take place to reasonable belief that activities that are likely to involve the commission of offences may take place. The tactic of wearing face coverings during outbreaks of public disorder has become increasingly widespread. Demonstrators involved in intimidatory or violent protest often wear masks or balaclavas that hide most of the face. These can serve a double purpose. They can both disguise the identity and heighten the intimidation of the people that the activity is directed against.
I can give an example from my previous ministerial experience in the former Ministry of Agriculture, Fisheries and Food. Scientists who were advising the ministry on animal health matters were sometimes visited at home by a mob of up to 20 people wearing balaclavas. Homes were attacked and officers of the ministry who were going about their business were attacked by people wearing masks and balaclavas in a thoroughly intimidatory fashion. Wearing such masks was designed to conceal the identity of the person and to heighten the intimidation. I suspect, although I have no evidence, that in some cases it may lead people to commit acts that they would not normally commit because they think that they cannot be identified.
Amendment No. 157 would extend the provision to cover the removal of substances such as face paint. We have considered the issue carefully. Face paint can be difficult to remove. I do not have personal experience, but I know a few people whose children have had their faces painted. Washing facilities are unlikely to be available during a demonstration. We concluded, therefore, that it would be unreasonable to require a demonstrator to remove face paint or to arrest him if he failed to do so. However, we consider it reasonable that a person who is detained at a police station should be required to remove face paint, or for the police to remove it so that the person can be photographed. Clause 93 specifically includes provision for the removal of face paint.
Amendments Nos. 158 and 159 would limit the powers of Clauses 94 and 95 to when it was reasonably believed that the activities involved the commission of terrorist offences. If these powers were limited by the amendments, the police would no longer find them useful for dealing with public order issues when face coverings were worn while crimes were committed. It would be more difficult for the police to obtain intelligence that crimes for terrorist purposes were likely to be committed.
As I said, sometimes the only links between the crime and the terrorism, or the alleged terrorism, are found only during the investigation itself. We are resisting the amendments because the police cannot effectively combat terrorism unless they have some inkling of the identity—sometimes the multiple identities—of the people they are looking for and dealing with. Why should an alleged terrorist have the option of concealing who he is by refusing a reasonable police request to take straightforward action to establish his true identity? What is the problem with that? Providing such powers only when there is already a known link would be an inadequate and half-hearted approach.
On Amendment No. 158ZA, it must be recognised that the police have a difficult job in policing demonstrations. It is a long time since I marched in a demonstration in the late 1960s in Grosvenor Square, but I know how difficult it was for everybody. I did not commit any offences, I should say. It was a peaceful protest all round. However, swift action is needed if it is believed that offences may be committed. We believe that it should be left to the judgment of the police officer on the ground to decide if and when to arrest someone for not removing the face covering that is concealing his identity.
I accept the point made by the noble Lord, Lord Beaumont, but I believe that we should leave the matter to the good judgment of police officers. If people are aggrieved, there are complaint procedures that they can follow if they feel that they have not had enough time to remove their mask or balaclava.
Amendment No. 158ZB would mean that magistrates no longer had the option of a custodial sentence for a person who failed to remove an item when required to do so by a constable. Under Clause 94, a person who fails to remove an item when required
to do so by a constable is liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, which is #1,000.Amendments Nos. 158A and 159A amend the penalty for the offence from a fine not exceeding level 3 on the standard scale to a fine not exceeding level 2 on the standard scale, which is #500. We believe that the sentences as drafted reflect the seriousness of the crime. They follow the sentences in Section 60 of the Criminal Justice and Public Order Act 1994, as amended by the Crime and Disorder Act 1998. We consider there is no case to change the penalties for the offence.
For extra clarity it is worth pointing out to the Committee—this will assist the other place which did not necessarily have enough time to debate all of the changes—that there is nothing fundamentally new in this group of clauses. They are extensions. The powers are already in place. We believe that they are a modest, precautionary and, indeed, proportionate approach to the situation in which we find ourselves now of extending the investigatory powers of the police. I realise that there has been a debate about who should make the decision to require the removal of items which may conceal someone's identity. However, one has to bear in mind that the constable, inspector or whoever is carrying out the task must take a reasonable view that the face being covered is being covered in such a way in order wholly or mainly to conceal the identity of the person involved. That may not necessarily be the reason for someone covering his or her face. I refer to cultural and religious reasons for doing so.
I turn to the Immigration Service. Many people enter this country and present themselves at airports with covered faces. However, there is never any problem as regards obtaining a cross-match with a photograph in a passport. The Immigration Service handles the matter carefully and is sensitive to the cultural needs and gender of the people concerned. The matter is not handled in a way that humiliates the people concerned. I can find no evidence of any complaints. Therefore, in my view that matter is a complete red herring in relation to discussion of these issues either inside or outside Parliament.
Existing powers to designate areas where the action we are discussing can be taken have not often been used. A designated area was declared during the May Day demonstrations in central London. Designated areas have also been declared in both Cambridgeshire and Staffordshire to tackle animal rights demonstrators. Such provisions can be incredibly intimidatory for the people concerned. The police will not routinely walk up and down the streets of this country demanding that people remove face coverings, be those red noses, masks, cultural or religious coverings. That does not constitute the power that we are discussing. I genuinely believe that the nature of what is proposed in this extension of police powers meets the current situation following the events of
September 11th. It is reasonable that the provision should apply for some time. That is why we do not wish to put a time limit on it.I end as I began. The events of September 11th were planned many years ago. No one has ever claimed that any part of the Bill, or the whole of it, would of itself have prevented the disaster of September 11th. No one has ever made that claim and we do not seek to make it. The Bill is not sufficiently intrusive to enable us to make such a bold claim. The powers that I am discussing constitute modest extensions and are covered by the normal rules governing the police. The guidance issued under the Police and Criminal Evidence Act 1984 will be revised and updated to take account of all the activities that I have mentioned. All the necessary existing checks and balances on the use of police powers will be maintained and operated as regards the powers that I am discussing.
I honestly believe that no one—I refer particularly to those who comment on the affairs of Parliament—has made anything like a reasonably decent case as regards criticising the powers in the Bill. They have made a case as regards powers that are not in the Bill in order to get a headline and a thousand word fee. However, we in this Chamber and the other place are responsible for the words in the Bill, not those that journalists think are in the Bill. We should bear that in mind as we continue to debate the Bill. I hope, therefore, that Members of the Committee will not seek to press their amendments.
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