Another Conservative policy flip-flop – this time on Control Orders

Those of you who follow these matters would have been forgiven for thinking that in the (increasingly unlikely) event of a Conservative Government one of the first things they would do is scrap Control Orders – the method used at present for keeping tabs on the handful of individuals (and it is a handful: less than a dozen) who are deemed to pose a serious terrorist threat to the public but who cannot for a variety of reasons be charged and brought before the Courts.

Successive Tory Home Affairs and Security spokespeople have attacked the very concept of Control Orders as being totally alien, an affront to liberty etc etc.  Repeatedly they have said that they would repeal the legislation.

Now, however, like with their economic policies and their promises on marriage, what had seemed like a cast-iron pledge has vanished like a mirage in the desert.

Their new policy document, “A Resilient Nation” changes the pledge into a review, saying “A Conservative Government … will … review the Control Order system with a view to reducing reliance on it”.

Zowie!! Radical stuff!

This was all aired in Lords Question Time this afternoon (in which I played a modest part):

“Lord Lloyd of Berwick

To ask Her Majesty’s Government what plans they have for phasing out control orders in the light of the unanimous decision of nine Lords of Appeal in Ordinary in Secretary of State for the Home Department v AF (No. 3).

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, the Government do not have any plans for phasing out control orders.

Lord Lloyd of Berwick: My Lords, I thank the Minister for that Answer. The House will recall the unusual circumstances in which we passed the control order legislation five years ago after an all-night sitting. Do the Government have any alternative plan—plan B, as it were—if Parliament decides not to renew the legislation when it comes up for renewal next month? If so, could the Minister let us know what that plan is?

Lord West of Spithead: My Lords, this House has gone over the control order issue at length and there have been numerous Questions on it. None of us likes control orders. I did not like them when I came into post and I specifically asked whether there was any way of getting round them. A detailed study into this was done by the Security Service—SO15 OSCT—and control orders were the least worst option. There are a very small number of them—12, according to the last quoted figure and fewer than that now. We use them on a carefully selected basis.

I believe that they are necessary for the security of the nation. We do not like them and we have a lot of safeguards in place. Three High Court judgments have upheld individual control orders since the House of Lords judgment. Mr Justice Wilkie said of one of the cases that there was overwhelming evidence of past involvement in terrorism-related activity and future intentions to be so involved. It would be remiss of our Government not to look after the security of our nation. Control orders are absolutely necessary and I will fight tooth and nail to keep them because there is no easy alternative at the moment.

Lord Harris of Haringey: My Lords, is my noble friend aware—

Lord Elton: My Lords—

Lord Hunt of Kings Heath: My Lords, perhaps we could hear from my noble friend first, and then from the noble Lord, Lord Elton.

Lord Harris of Haringey: My Lords, is my noble friend aware of the comments made by the noble Lord, Lord Carlile, in his capacity as the independent reviewer of terrorism legislation, that there is no readily available alternative to control orders? Is he also aware of the interesting document on national security published by the Conservative Party, in which it, too, acknowledge that the best that the party can offer as an alternative is to review the system with a view to reducing reliance on it—which, as I understand it, is the Government’s policy?

Lord West of Spithead: My Lords, my noble friend is absolutely right. The noble Lord, Lord Carlile, who is the independent reviewer, stated,

“it is my view and advice that abandoning the control orders system entirely would have a damaging effect on national security”.

He went on to emphasise that he had considered the effects of the court decisions on disclosure and did not agree that the effect was to make control orders impossible.

My noble friend is absolutely right that we constantly review this issue. I am very hard on people, when they try to come up with a control order, to see that it is absolutely necessary. It is interesting that those in the party opposite, who earlier said that they were going to get rid of these things, have, amazingly, slightly changed their view—which is much more sensible, because all of us are interested in the security of our nation.

Lord Elton: Nevertheless, the noble and learned Lord, in his supplementary question, asked about the Government’s plan B. I did not hear an answer: do they not have one?

Lord West of Spithead: My Lords, all the time we are looking at threats, possible threats and what might happen. It would be foolhardy of me to say on the Floor of the House what we would do. Clearly, we would ensure the safety of the nation. It might cost a huge amount more, and take a great deal more effort, and it might mean we could not be quite so sure of our safety, but that is what we would do.

James Cleverly repeats the myth about terrorism powers and Icelandic banks

I see that my MPA colleague James Cleverly has fallen (despite being a Tory) into the typical trap that usually catches the LibDems of having a Pavlovian reaction every time the words “counter-terrorism” or “anti-terrorism” are seen.

He has repeated the myth that the UK Government wrongly used counter-terrorist powers to freeze the assets of Icelandic banks when it looked as though British citizens and institutions might suffer when the banks appeared to be about to default.

The powers used were in the Anti-terrorism, Crime and Security Act 2001.

LibDems and James Cleverly should notice that, although the Act’s title contains the magic word “anti-terrorism”, it is also about “crime and security”.

The specific power used was the freezing power and the Act specifies the following:

“(1) The Treasury may make a freezing order if the following two conditions are satisfied.

(2) The first condition is that the Treasury reasonably believe that—

(a) action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons, or

(b) action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons.

(3) If one person is believed to have taken or to be likely to take the action the second condition is that the person is—

(a) the government of a country or territory outside the United Kingdom, or

(b) a resident of a country or territory outside the United Kingdom.

(4) If two or more persons are believed to have taken or to be likely to take the action the second condition is that each of them falls within paragraph (a) or (b) of subsection (3); and different persons may fall within different paragraphs.”

Even a LibDem (and especially someone who is usually more sensible – like James Cleverly) might recognise that these powers are not about combatting terrorism.  They are more general powers and are about protecting the UK economy and/or the property of UK nationals.

The question that James Cleverly has to answer – I don’t expect a coherent response from the LibDems – is why repeat something that is wrong and more particularly is he against protecting the UK economy and the property of British citizens?

Proof that ASBOs are effective as “noisy sex” nuisance pleads guilty

There are those people who have never been convinced about the value of Anti-Social Behaviour Orders (ASBOs).  I am sure all such doubters will be silenced by the news that Caroline Carter has pleaded guilty in Newcastle Crown Court to three counts of breaching her ASBO by making too much noise while she was having sex.

At the Metropolitan Police Authority … and Mayor Boris Johnson is discomforted by a Labour MEP on human trafficking

The Metropolitan Police Authority is in session.  Mayor Boris Johnson is in the Chair, but the Uber Vice Chair Deputy Mayor Kit Malthouse AM (the UVCDMKMAM) is not at his side yet (he is running late), so the Mayor is flying without lights (and no hand on his tiller).

First business is a petition calling on the Metropolitan Police to retain its dedicated specialist unit dedicated to to combating the crime of human trafficking.  It is being presented by Mary Honeyball, a Labour Member of the European Parliament since 2000.   As she takes her seat to present it, it is clear that Mayor Johnson has never heard of her (or possibly the European Parliament, as John Biggs AM comments sotto voce that he thought that under the Mayor’s administration London was seceding from the European Union).

The issue is a proposal is to disband the human trafficking unit and to mainstream its activities in the work of the 32 Borough Command Units with the specialists in the unit being transferred to the central Clubs and Vice command.  There are fears that this is in reality a cost-cutting exercise, that expertise will be lost and that the focus of the work in practice prioritising one type of trafficking (prostitution) at the expense of others (eg forced labour and domestic servitude).  Mayor Boris Johnson looks uneasy throughout the discussion.  He clearly recognises the importance of the issue and perhaps is unhappy at the direction that seems to be being taken within the Metropolitan Police on how to deal with human trafficking.

The Commissioner promises that a report will come to the Authority after his Management Board has reached its conclusions.  I ask the Mayor whether he (or the UVCDMKMAM) has given a touch on the tiller steer to the Commissioner on the direction being taken.  The Mayor responds that he is keen to ensure “the maximum efficiency and effectiveness of work on human trafficking in the run up to the Olympics”.  The Commissioner smiles, so clearly he thinks that’s the right answer.  We’ll have to wait and see what it means.

The smoking ban, welfare benefits and Broadmoor Special Hospital

As mentioned in the previous post, I spent a big chunk of yesterday visiting Broadmoor Special Hospital, in my capacity as Chair of the Independent Advisory Panel on Deaths in Custody.  Most of the discussion and the issues we looked at will inform the work of the Panel.  However, a number of other issues emerged in passing.

It was mentioned that many of the patients now had more money than they did before the smoking ban, as they no longer spend money on cigarettes.  I asked whether the introduction of the smoking ban – applied throughout the hospital site – had raised any specific issues (I remember comments when the legislation was going through Parliament about the problems that were thought likely to arise in prisons and other institutions).  In practice, comparatively few difficulties had arisen.  Nicotine interacts with some medications and this had had to be monitored closely at the time the ban came in and dosages needed some adjustment.  Many patients, we were told, now acknowledged that they were physically healthier, although some had switched their spending from tobacco to chocolate and sweets.

Tensions did arise when individuals were transferred from prison (where smoking is still permitted) to the hospital and have to stop smoking.  However, the biggest source of tension was the difference in income of those transferred from prison and those detained in the Hospital under mental health legislation.  Apparently, prisoners and those transferred from prison only receive “pocket money” of around £17 per week.  Those detained under mental health legislation and who have never been in prison are on welfare benefits and, following a court ruling that it is unlawful to reduce benefits for those detained in hospital for long periods, receive some £80 to £100 per week.  This is clearly an anomaly and I have to admit to being quite relieved that it is not a problem for which my Panel has to find a solution.

I become Minister of Death for the day ….

I spent a big chunk of yesterday visiting Broadmoor Special Hospital, in my capacity as Chair of the Independent Advisory Panel on Deaths in Custody.  The visit was fascinating, staff were very generous with their time and I learned a lot.

I also enjoyed the security arrangements, which are rather more rigorous than most that I have encountered.  You need a photo-ID, you provide two fingerprints for matching on entering and leaving the hospital, most electronic items have to be left in lockers outside the hospital, and you need to go through a metal detector as well as being searched.  When all that is completed you are issued with a visitors’ identity badge, which carries your photograph, your name and job title or designation.

Presumably, when it came to a job title, only a certain number of characters could be entered on the badge and “Chair of the Independent Advisory Panel on Deaths in Custody (Ministry of Justice)” obviously didn’t fit.  I found myself bearing the label: “Lord Toby Harris, Minister of Death”.

Fortunately, the font size was quite small, so I think (hope?) that none of the patients could read it ….

That Was The Parliamentary Session That Was

Parliament has been prorogued. The 2008/9 Parliamentary Session ended on 12th November 2009 and the new Session begins with the Queen’s Speech on 18th November 2009.  I suspect the 2008/9 Session will be remembered for the expenses and other scandals that engulfed both House rather than for the legislation enacted during it.  However, some major Bills were passed and became Acts of Parliament.  These included the:

  • Apprenticeships, Skills, Children and Learning Act:  this provides a statutory framework for and a right for 16-18 year-olds to apprenticeships; gives employees a right to request time-off for training; gives local government responsibility for funding education and training for 16-18 year olds; changes school inspection arrangements; creates a new parental complaints service; and strengthens accountability.
  • Banking Act:  this provides a permanent system for dealing with failing banks; and gives the Bank of England a new “financial stability” objective.
  • Borders, Citizenship and Immigration Act:  this changes the rules on naturalisation; gives new functions (and new duty to safeguard children) to the UK Border Agency; and introduces powers to control all those arriving in the UK from the rest of the Common Travel Area.
  • Business Rate Supplements Act:  this gives upper tier local authorities (in London, the Greater London Authority) the power, following consultation, to levy an additional business rate for economic development purposes (including Crossrail in London).
  • Coroners and Justice Act:  this reforms and updates the law on coroners; extends the laws on child pornography to cover non-photographic images; increases the flexibility on hearing evidence from vulnerable witnesses etc.
  • Health Act:  this gives statutory force to the new NHS Constitution and sets out the responsibilities of patients and staff; introduces direct payments for health services to give patients greater control over the services they receive; makes provision for more information on service quality to be made available to patients and others; and introduces new measures to protect young people from the harm caused by smoking.
  • Local Democracy, Economic Development and Construction Act: this makes provisions to encourage the greater involvement of people in local authority decision-making; creates an obligation on councils to respond to petitions; establishes a new body to represent the interests of tenants; and places a new duty on local authorities to assess economic conditions in their area and to work with Regional Development Agencies to produce a single regional strategy.
  • Marine and Coastal Access Act:  this reforms the law on marine regulation, fisheries management and marine conservation; and enables the creation of a walkable route around the English coast.
  • Parliamentary Standards Act: this created the Independent Parliamentary Standards Authority.
  • Policing and Crime Act: this strengthens police accountability; creates an offence of paying for sex with trafficked or coerced women; tightens regulation of lap-dancing clubs; and amends police powers for dealing with young people drinking in public.
  • Political Parties and Elections Act: this strengthens the powers of the Electoral Commission; alters the definition of election expenses; and requires greater clarity on the source of political donations.
  • Welfare Reform Act: this abolishes Income Support and moves all claimants on to either Jobseekers’ Allowance or, if sick, on to Employment and Support Allowance; introduces a new regime of sanctions for non-attendance at JobCentres; and provides additional powers for the enforcement of child maintenance arrears.

In addition, the House of Lords spent seven full days debating the Postal Services Bill, which would have enabled a minority stake in the Royal Mail Group to be sold whilst ensuring that the Group remained in public ownership, would have transferred the Royal Mail’s historic pension deficit to the Government and would have created a regulatory regime for the postal services sector under OFCOM.  In the event, the Bill, having passed all its stages in the Lords, was introduced in the House of Commons and then abandoned.  The Bill has now fallen with the end of the Parliamentary Session. Three major Bills that have had their Second Reading debates and some Committee discussion in the House of Commons have been the subject of Carry Over motions, which means that they have not fallen with the end of the Parliamentary Session and their progress through Parliament can be resumed in the new Session.  These are the:

  • Child Poverty Bill:  this would give statutory force to the Government’s 1999 commitment to eradicate child poverty by 2020, placing a duty on Ministers to meet income poverty targets and requiring the regular production of a child poverty strategy.
  • Constitutional Reform and Governance Bill:  this would end “by-elections” to replace the remaining hereditary peers that sit in the Lords when they die; would make it possible for members of the Lords to resign or to be suspended/expelled; introduce a new Parliamentary process for the ratification of Treaties; establish a statutory basis for the running of the civil service; end the Prime Minister’s role in appointing senior judges; introduce new rules on protests around Parliament and a variety of other constitutional adjustments.
  • Equality Bill:  this would harmonise and extend anti-discrimination legislation; would place a unified duty on public bodies; extend discrimination protection to the membership of private clubs; require employers to review and publish gender pay differences within their organisations; extends age discrimination legislation outside the workplace; and much else besides.

The number of defeats suffered by the Government this session is the lowest in any full session since the Labour Government was elected in 1997.  This session the Government was defeated on 24 occasions (out of 89 votes in total).  Last session there were 29 defeats.   By contrast there were 45 Government defeats in the 2006/7 session and 62 in the 2005/6 session.  To put these numbers in context: the last Conservative Government under John Major suffered only 62 defeats in the entire 1992-97 Parliament.

Labour now has 212 members in the Lords and is the largest Party, but this only amounts to 30% of the total membership of 705.  There are 190 Conservative peers (27%), 183 cross-benchers (26%), and 71 LibDems (10%) – the remainder comprise 26 Church of England bishops/archbishops and 23 non-affiliated or other. The reality of these numbers is that the Government does not have an automatic majority to carry through its legislation.  At any one time, the opposition parties can combine to defeat the Government, particularly as a significant proportion of the cross-benchers will usually vote with the opposition, depending on the issue.

Liberal Democrats press their argument that sexual infidelity is a good justification for murdering your partner

The Parliamentary Session is due to end some time tomorrow and the Lords and the Commons are now playing ping pong – trading amendments so that Bills can be finally approved by both Houses in the same form so that they can receive Royal Assent before Prorogation.

The Coroners and Justice Bill has now returned to the Lords.  The Commons have reversed some of the changes made to the Bill by the Lords at earlier stages.  One of these was an amendment proposed by the Liberal Democrats and carried with the support of the Conservatives that – in effect – would have enabled the fact of sexual infidelity as being a mitigating factor in arguing that a charge of murder should be reduced to manslaughter.

The House of Commons disagreed with the amendment and returned the Bill without the amendment to the Lords.  The Liberal Democrats have today re-proposed their previous amendment (in a different form).  On this occasion the Conservatives abstained and the LibDem bid has been defeated by 157 to 63.

There was an excellent speech from Baroness Joyce Gould – as a non-lawyer, in a debate dominated by barristers – in which she said:

“My Lords, I rise to oppose the amendment and ask for the reintroduction of the original clause.  …..

I do not have and cannot give examples of what has happened in court; I cannot cite cases. I can cite the views of many hundreds of women who feel absolutely outraged that this House deleted the clause in the first place. The Women’s National Commission, of which I am chair, and which, as my noble friend said, represents 550 very varied women’s organisations, large and small, around the country, was inundated with queries as to how that could possibly happen. No one believed that it could. As a consequence, I was asked as chair whether I would write to the Secretary of State for Justice expressing the concerns of those many women, which I did. I was delighted—as I am sure they were as well—to see it back. I hope that it stays in the Bill.

The Women’s National Commission has long known from our work with the violence against women sector the devastating effect of domestic homicide on families and communities. In the UK, two women a week die at the hands of their partners. That level is clearly unacceptable, but until violence against women is eradicated, we must ensure that justice is served on those men who commit such crimes.

As has been said, the law of provocation has a long history. The killing of a wife or girlfriend by a partner because of an actual or suspected infidelity—she may never have done anything, but he thinks that she has—has often been used in the past to reduce murder to manslaughter. The law should be clear that it is no longer acceptable in the 21st century—not the 18th century, the 21st century—that anyone owns anyone. The penalty for infidelity—which in itself is not a crime—should not be one of killing by anyone. Those partners who believe it right to kill should always go on trial for murder. In this instance, our concern is that men who kill women should not be able to plead the traditional argument that she was unfaithful, or that she might have been unfaithful, to support a plea of loss of self-control.

The noble Lord, Lord Thomas of Gresford, cited the Humes case of 2002. The point about the Humes case was that the judge accepted the manslaughter provocation. It did not go a jury, and yet we have heard an awful lot about how the clause is unnecessary because juries would understand in this modern age. That case did not go to a jury; the judge took the decision. Therefore, the argument in respect of juries collapses. I find it extraordinary that those arguments have been put.

It is vital that the Bill is amended once more to reintroduce the clause and to return it to the Commons. Without the clause, the Coroners and Justice Bill will allow men who perpetrate violence against women to operate with impunity. It is vital that we protect women and children by supporting the clause. Infidelity alone cannot and should not provide a defence for murder.”

Message to Iain Dale: Don’t let an ugly fact stand in the way of a good rant, but legislation on communications data has actually been put on hold

I have a confession to make.  At least once a day I read Iain Dale’s blog.  Sometimes I find it amusing and sometimes I find it interesting, particularly as a means of understanding the modern Conservative mindset.  Occasionally, of course, I read it as an antidote to low blood pressure.

Today, he had a good rant with “This Pseudo-Fascist Plan Must be Scrapped“.  This relates to the proposals on communications data and the need to preserve these for law enforcement purposes.

Reading the rant, I was surprised – not at its tone (Iain Dale is renowned for giving good rant), but at what I naively assumed was the factual trigger for the rant.  It sounded as though the Government was pressing ahead with legislation on this with a view to getting it passed this side of a General Election.  I was surprised for two reasons: first, that I had missed the announcement; and second, I had understood that this was not what was intended.

However, such was my faith in Iain Dale that I have only just got round to checking the facts.

And what did I find?  The entire rant was based on absolutely nothing.

The Government has NOT announced that it is pressing ahead with legislation.  All it has done is publish the results of its consultation exercise on the issue.  And sensible commentators (not Iain Dale) have recognised that the plans have been shelved.  The idea of a single Government database had in any event been dropped months ago.

I have two warnings for Iain Dale.

First, if he gets himself this worked up about something that ISN’T happening, he will need to be on heavy-duty tranquillisers long before we get into a General Election campaign.

And second, as I have pointed out before, there is a real and serious issue here that any Government must address.  As I said before the consultation was launched:

“At present, telephone companies keep data on their subscribers who make telephone calls, who they connect to and for how long.  They do this, so that they can bill people.  For many years, it has been possible for the police to access this data as part of their investigations into crime.  To do so, they have to get proper authorisation, certifying that accessing the data is proportionate to the crime being investigated and each case has to be considered individually.  The data can be used as evidence in Court and does not involve tapping the call and listening to the content.  Many trials rely on this evidence for criminals to be convicted – there is a murder trial under way at the moment where the crucial evidence is which mobile phones contacted each other just prior to and immediately after the murder took place.

But – and this seems to have passed the pundits by – technology is changing.  Telecoms companies (both fixed line and mobile operators) are building new networks based on VoIP technology.  This is cheaper and more flexible and – critically – does not require detailed call-by-call billing.  The data on which so many trials now rely will soon cease to exist.  The Government is therefore quite rightly going to consult on what can be done to capture this information and allow it to be used in criminal investigations where necessary.

It is not about giving the police more powers to pry into people’s personal lives.  It is about not losing vital material that is currently used to catch criminals.

And, of course, new forms of communication are being created all the time (eg. on social networking sites and chat facilities built into on-line gaming).  Should the police have powers to find out who is communicating with who in these new ways?  That’s what the consultation is about.  It is not some monstrous new assault on civil liberties.  It is allowing a sensible debate about how existing powers should be modified to reflect the changes in technology.”

Unless Iain Dale wants to see the police having to fight serious criminals with even less information available to them than they have at the moment, this is a nettle that is going to have to be grabbed.

Prison sentences for those who who illegally trade in personal data

The Ministry of Justice has issued a consultation document on proposals to introduce prison sentences for thsoe who who seek to profit from the illegal trade in personal data, and for those who knowingly or recklessly disclose personal data to those who have no right to have it.

I accept that our prisons are already seriously over-full, but I am quite clear that we will not achieve higher standards of data security in this country until there are much tougher penalties.  The Government is committed to ensuring a robust framework of protection for personal data and wants to increase public confidence in its use and deter and punish appropriately those who seek to profit from its illegal trade.  (Quite properly it is proposed that there be a “public interest” defence to protect genuine investigative journalism.)

The only thing that will concentrate the minds of those engaged in this sort of trade will be the threat of prison.  Such crimes are not “victim-less”.