Crime and Security Bill

My Lords, I thank the Minister for his explanation of the Bill. I wish that I shared his enthusiasm for some of its provisions. This Home Office Bill, like some others, is a jumble of unconnected items, some of them barely different from legislation passed in the past Session, the effects of which, whether good or bad, can scarcely yet be known. The Government have already come back with further legal elaborations on such areas as gangs. It would be nice to have Bills that took strategic steps forward on the basis of well thought through policy objectives instead of being faced with successive pieces of proposed legislation with untidy little zigzag steps, without clear direction. Indeed, in this Bill we have the spectacle of laws passed in quick succession reversing provisions that were previously whipped through. I shall come back to that. Legislating in this way reduces the chances of effective implementation, since those who are called on to implement do not know what they are really being asked to achieve. The result is a vicious circle, whereby poor legislation leads to poor implementation, which is responded to by yet more legislation. We have seen that in successive Bills. It does not result in good policy. No wonder the quantity of laws passed seems to have so little deterrent effect on what actually happens on the streets of Britain. A Conservative Government will do better. These strictures characterise this Bill. Let me say straightaway that we are not critical of the aims of the Government in all areas, nor do we disagree with them. I cite one that has our wholehearted support. The compensation for victims of terrorism overseas has cross-party support, and putting right this anomaly is long overdue. But other areas, such as restrictions on the sale and supply of alcohol, represent a pretty strong reversal of one of the Government’s hallmark policies of earlier years. Their previous policy was nothing if not short-sighted and pretty damaging. It was pushed through despite the warnings. We on these Benches said at the time that the claimed reduction in alcohol-related disorder would not materialise and called for decisions about late licensing to be made locally by those who knew local conditions, not dictated from Whitehall. The Minister claims that this policy has been successful in many places. One would like to know where. In our view, the result of the Government’s policy has been the very opposite of the reduction of all the things that we have been seeking to reduce; indeed, one has seen an increase in binge drinking. Then there are the tinkering provisions. The whole House wants to see a reduction in anti-social behaviour, binge drinking, gang violence, the scourge of domestic violence and out-of-control wheel clamping. Indeed, these are all things that make daily life a misery for a good many people across the country. Our aim should be not reduction but abolition. The Minister started out by making a rather self-congratulatory statement on how crime has been reduced in this country. He cited the British Crime Survey, which is not a reliable measure of what actually happens regarding crime in this country. A survey that excludes juveniles, even if they have committed murder, does not form a good evidential basis for what is actually happening. The evidence—certainly anecdotal evidence—is that there is a rise, particularly in juvenile violent crime. So how do these tinkering provisions improve what has already been put in place in the recent Policing and Crime Act? The 2009 Act resulted in many questions, not least about the practicality of some of the clauses. The proposals in this Bill are really no different. My noble friend Lord Skelmersdale will focus on this in his winding-up speech. He will also look at DVPOs; questions arise out of the Government’s proposals that need clarification, although we are in favour of this issue being tackled. In other areas of the Bill, I question whether primary legislation is needed. A lot of it should be common sense. That is certainly true of Clause 45, which creates a new criminal offence of possessing an unauthorised mobile phone and other data devices in prison. It has for many years been an offence to take a mobile phone into prison. How, therefore, can it not be an offence to possess these devices when in prison? It seems to me that this is legislative nonsense. I come back to implementation—the real problem is a failure to implement existing law, as a result of which there is a problem of significant scale. Between 2006 and 2008, there was a 350 per cent increase in the number of phones and SIM cards found in prisons; during the same period, the number of phones and SIM cards found in high-security prisons doubled. In December, the noble Lord, Lord Bach, said that these figures, "““understate the actual number of finds””.—[Official Report, 14/12/09; col. WA 186.]" Can the noble Lord, Lord West, say what is meant by this? Presumably the actual number of finds, in turn, understates the actual number of still undiscovered mobile phones and other devices in prison. The Government seem to think that by finding more phones they are solving the problem. But what about parts of phones? These things are easily dismantled and put together and they can be easily hidden. Will the possession of part of a device also be an offence? What will be the penalties for possession? Can the noble Lord expand on the Government’s strategy for countering the difficulty of finding little pieces? There is a genuine problem, but in legislating for an offence and making it yet more detailed the Government have a duty to tell us how it will be made an effective piece of law and not something else that simply sits on the statute book and is abused by those who evade it. If a good many parts of the Bill could be described as common sense, others do not go far enough. Over the years, we have seen our police spending more and more time on process rather than on policing. The latest measures on stop and search are certainly a step in the right direction after many years of pressure from these Benches among others, but frankly they do not go far enough. They reduce the recording requirements for each stop and search incident from 10 to seven items. The noble Lord said that only two of them need to be recorded manually but, for goodness’ sake, the forms and the manual stuff should be scrapped entirely and replaced by an officer radioing in the basic details of the search. Our task, surely, is to simplify the work of professionals, not just to fiddle with the level of the burden on them. The Government have also had the opportunity in the Bill to address other problems connected with stop and search. I raise here an important issue. The case of Gillan and Quinton has seen the Government on the wrong side of the law. Rather than implementing the judgment by enacting provisions that would give clarity to the limits of the powers and the safeguards against abuse of them, the Government have said that they will appeal, even though there are doubts about whether there are grounds available for this to be done. This leaves the police in considerable uncertainty for an indefinite period. That is deeply unsatisfactory and not calculated to improve relations between the police and the local communities. I hope that the Government, in winding up, will address themselves to this important point. If more evidence of a lack of common sense were needed, one has to look only at the Government’s approach to control orders. There is a search provision in the Bill, presumably responding to the two court judgments that found that the legislation as currently drafted was insufficient to authorise such a power and obligation. The Joint Committee on Human Rights has said: "““If we are keeping control orders, do we need to change the legislative framework to reflect more accurately the way the courts require the system to be operated?””." Is this not the point? The Government are tinkering again, instead of acknowledging that, if the control order regime is to continue to exist, it cannot be in its present form. If the Government can respond to one ruling, they can surely respond to another. Why, if they can do so in relation to powers of search and seizure, do they still decline to act in relation to the special advocates system, disclosure of information following the case of AF and the need to keep the prospect of prosecution continuously under review at an appropriate level? The scale is tipped further in the direction of security, without even acknowledgment of the existence of issues relating to fundamental freedoms. Security is very important but we have always to balance it with the freedoms that we want to preserve. Just as the control orders demonstrate the Government’s tendency to focus on security at the expense of freedom, so does the sorry history of the DNA database. I am aware of what the Minister has just told us—appealing, at last in this game, to the question of what the evidence shows. The UK has, for years, been storing the DNA of innocent people on a national database. People who go into a police station voluntarily to help with an inquiry find themselves on it. People who are briefly questioned in a police station may also find themselves on it. There is also, as we know, a difficulty about getting off the database. People mistakenly arrested can find themselves on it. There remains an issue of what this database is for and who should be on it. The House knows that, following an ECHR ruling, the Government have accepted that the current system of keeping innocent people’s DNA indefinitely is illegal. They tell us that the proposals before us meet the requirements of the ruling. The Minister criticised the system that prevails in Scotland. I cannot remember the words that he used, but he suggested that it was not based on evidence—that it had been put together without any due regard to what the evidence might show. I cannot remember his exact phrase but it was not complimentary. In the absence of a much better put together case than the assertions that we heard this afternoon, the Scottish system has shown that it is capable of delivering. It is the reason why we on these Benches prefer that model. We believe that the state should not retain the DNA profiles of those not convicted of an offence, except in circumstances where the charges relate to a crime of violence or of a sexual nature. Rather than keeping the profiles of those who should not be on the database, the Government should focus on other avenues. The Minister cited some of the cases of people whose offences were 20 years old, many of whom are not on the database. I agree that the Government should focus on those avenues. They should focus on maintaining DNA from crime scenes to help to solve cold cases. Adding those persons who have been previously convicted or are in prison but are not on the database is another area where the Government should focus their energies. Because of recidivism and because DNA is a useful detection tool, we on these Benches certainly agree that retrospective powers would be right in this instance. They would deal with many of the points that the Minister made. We do not need a system that is outside the rulings of the ECHR to achieve an effective database for the prosecution of criminal offences. Can the Minister say how, in proposing retrospective powers, these will be implemented? I understand that implementation and the decisions that the police will take will be based on tests of necessity and proportionality. Those are two very general terms. It would be very helpful to know—and I hope that the Minister can be specific on this—how such tests would be defined and what guidance would be given to the police. These are important details and could certainly lead, in the absence of tight guidance, to huge variations in the interpretation of what constitutes necessity and proportionality. We also need to improve the accountability of the DNA database. The Minister did not mention this point, but giving the National DNA Database Strategy Board a central decision-making role on the removal of samples is certainly welcome. Again, can the Minister assure the House that the guidance and decisions of the board will be binding on chief constables, so that we put an end to what is otherwise a form of postcode lottery? It would also be helpful to know what the timescale will be for the production of this guidance. Is the Minister confident that the board will produce appropriate guidance and make appropriate decisions? The board has existed for many years but so far has not done so. That is why we are glad that the Government have accepted our proposals to improve the accountability of the board to Parliament. That will spur the board into rather greater activity. The overwhelming impression that one gets from the Bill is that the Home Office has little vision and no strategy. The Bill identifies a Government who are out of gas—a Government who are grinding to a halt. The country needs a more purposive and vigorous approach to the challenges of crime and security.