Protection of Freedoms Bill

Public Bill Committee, 26 April 2011.

Gary Streeter (Conservative, South West Devon)

Good morning, everyone. Welcome back. Before we continue our line-by-line consideration of the Bill, I remind hon. Members that the deadline for tabling amendments for Tuesday, 3 May is at the rise of the House this evening. It is earlier than usual because of the public holidays. We shall now resume our proceedings.

Clause 29

Vernon Coaker (Labour, Gedling)

I beg to move amendment 93, in clause 29, page 19, line 30, leave out subsection (1) and insert—

‘(1) The Secretary of State must establish an independent inquiry into the use of surveillance camera systems in England and Wales.

(1A) Having considered the recommendations of that enquiry, and following a report on those recommendations to Parliament, the Secretary of State must prepare a code of practice containing guidance about surveillance camera systems.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 99, in clause 30, page 20, line 39, at beginning insert—

‘(A1) The Secretary of State must publish a draft code of practice prepared under section 29 60 days before it is laid before Parliament.’.

Vernon Coaker (Labour, Gedling)

Good morning, Mr Streeter. I hope that among all the other things you have been doing, you have had a reasonable break and that members of the Committee have enjoyed themselves, and even on the beaches during the weekend have been preparing rigorously for our discussion of the Bill.

It is good to be on the Committee reunited with colleagues and friends. I hope that the Under-Secretary and I swap places again soon. My brief from an earlier Bill, the hon. Member for Northampton North, is in Committee. I still have not received a bill for his work then, but it is good to see him. On a serious point, the hon. Member for South Swindon and I have not been members of the same Committee since we discussed the Academies Bill soon after he was elected to Parliament. We had some interesting exchanges at the time and, hopefully, in the forthcoming razzamatazz of our proceedings, we shall have more interesting exchanges of views and opinions as we approve this Bill.

We have suggested under amendment 93 an independent inquiry into the use of surveillance camera systems before we proceed further with the Bill. Later clauses bring independent inquiries under the Regulation of Investigatory Powers Act 2000 as well as under powers of entry. One of the reasons why the amendment is so important is that the Government are caught on the horns of a dilemma in respect of what they are trying to do. The Bill amends certain pieces of legislation, and an independent inquiry would help it to achieve at its heart an all-embracing fundamental principle to drive on amendments in other areas. At present, it lacks such a principle. Although the Government are seeking to amend different bits of legislation and tweak certain pieces, as they are doing under the clause and the code of practice for surveillance camera systems, they do not have a fundamental drive forward.

My hon. Friends have tabled an amendment to a later part of the Bill, and others have suggested a debate about whether such matters need to be amalgamated under the guidance of a privacy commissioner. An inquiry into surveillance camera systems would explain how such systems relate to other aspects, such as RIPA, powers of entry and a range of other emerging technologies that many of us have not yet even thought about. Such an inquiry would establish an evidence base for what the Government are doing.

I am not alone in wanting an independent evidence base. In 2008-09, in its report “Surveillance: Citizens and the State”, the House of Lords Select Committee recommended that the Home Office commission an independent appraisal of the existing research evidence on the effectiveness of CCTV in preventing and detecting crime. Indeed, it proposed a statutory code for CCTV. It is not just me who is arguing that there is a need to understand such matters and look at them in more depth; the House of Lords Committee said exactly the same thing.

Nicola Blackwood (Conservative, Oxford West and Abingdon)

What assessment has the hon. Gentleman made of the cost of his very interesting proposal for a wide-ranging independent inquiry on the subject?

Vernon Coaker (Labour, Gedling)

Actually, I have not made an assessment of the cost, but if one wants legislation that is effective and will improve the current situation, one should start with the principle and then look at whether it is affordable. As I said, the House of Lords Select Committee proposed a statutory code and an independent appraisal. The hon. Lady will have read the notes from the deputy chief constable of Northamptonshire—the hon. Member for Northampton North will be keen on this—who stated in his submission to the Committee, which I shall quote in a moment, that the Government should look at a privacy code rather than have what he politely refers to as a piecemeal way of changing the current system. An independent inquiry to look at all the evidence, the assessment and the rights and wrongs would help us much better to understand all the changes.

There are some worthy proposed amendments to current legislation and on CCTV. No doubt, in his response, the Minister will say, “The hon. Gentleman will remember that when he was a Minister of State, he looked at a code of practice for CCTV, and said exactly that to the House of Lords Select Committee.” No doubt, the Minister will also point out that the interim surveillance camera commissioner was introduced by the last Government. That is all true, but what is missing in the Bill is the sense that there is an evidence base for the things we are considering.

Having said that, I want to look at some unresolved issues in the Bill to see whether the Minister will lay out for the Committee the Government’s thinking and explain why no inquiry is needed. Will he explain that my amendment 93 is unnecessary because the Government have assessed the whole question, based their view on evidence and accordingly made the appropriate response in the Bill?

For example, an inquiry might consider, and establish for us, exactly how many surveillance cameras there are. The figure always given was just over 4 million, but in his evidence to us Chris Sims said that ACPO believes 1.8 million is a more accurate figure. An inquiry on surveillance camera systems could look at who is right and what the correct figure is. As it currently stands, the Bill—notwithstanding the order-making power in it—states that the surveillance code will apply only to police and local authorities.

How many police and local authority cameras are there? Is the Local Government Group right to state:

“It is also important to remember that at most councils operate 3.3% of all CCTV cameras in England and Wales”?

As it currently stands, the Bill—it will protect freedoms and has a great title—addresses only 3.3% of all the surveillance camera systems in the whole country. Surely an independent inquiry should look at that to see whether it is appropriate and whether the Bill’s provisions should be extended.

The Information Commissioner pointed out that

“only the police and local government will be obliged to follow the proposed code,”

as I have said. He continued:

“This could cause problems in practice given the many partnership arrangements between the public and private sectors for town centre monitoring. There is also widespread use of CCTV and ANPR systems across all sectors including government agencies and increasing deployment of ANPR in the private sector such as with car park operation, where sometimes details of people’s vehicle movements are stored indefinitely and insufficient safeguards are in place regarding security, access and further use.”

He considers that

“further thought should be given to the implications of limiting the application of the code to the police and local government only.”

Again, if the Information Commissioner is concerned about how the Bill is set up and that insufficient thought has been given to how it applies to a small number of cameras—what about the rest?—surely an inquiry should look at that. The Information Commissioner is not suggesting a little tweak; he is pointing out that the Bill as drafted deals with only a small proportion of the surveillance camera system.

Michael Ellis (Conservative, Northampton North)

The hon. Gentleman is addressing the matter with his usual eloquence, but is it not possible that most of the cameras in the 3.3% figure he is quoting are the ones that are most in the public eye? In other words, they are focused on public areas, rather than many of the cameras that are calculated in that figure, which will be within private buildings, companies and the like, with several cameras within one building. The ones that are mostly focused on the public, that the public are aware of, are those under local authority control.

Vernon Coaker (Labour, Gedling)

That is a fair point. We do not, however, know how accurate the hon. Gentleman’s statement is. There is a need for an independent inquiry. The Information Commissioner—not me—is saying that there is a problem with the Bill only applying to a small number of cameras. I am saying that an inquiry would enable us to establish the accuracy of what the hon. Gentleman said and whether—I am setting up a straw man here—there is a problem. The Bill creates a code of practice for the cameras that need a code to adhere to, which people have to have regard to. The honest answer to his question is that I do not know, which is why an inquiry would help.

In the Bill, there is an order-making power for the Secretary of State to extend the power within the Bill to other bodies. At the moment, only the police and local authorities have to have regard to the code. There is an order-making power, which means that that can be extended to other public bodies, should the Secretary of State choose to do so. If we do not have an inquiry, what evidence will that extension be based on? How will it be determined that the order-making power should be extended? If this is such a fundamental part of the Bill and is so important for the protection of freedom, why are police and local authorities covered by primary legislation, but not other public bodies? Why should the extension to other public bodies just be a matter for the Secretary of State to determine?

The inquiry could look at which camera systems are covered by the Bill. As the European Secure Vehicle Alliance said:

“The context within which surveillance systems are assessed in terms of their efficacy and legislative framework might well consider broadening its scope to include road safety camera and ANPR systems in addition to CCTV.”

As we know, the surveillance camera systems that the Bill defines include automatic number plate recognition. What evidence does the Minister have, apart from the Birmingham incident, which involved both CCTV and ANPR, that ANPR is not working and needs to be brought within the scope of the Bill?

The evidence put before us by the ESVA shows that the vast majority of the public are happy with ANPR. They think that ANPR is a good system that works well. Why is the Minister including ANPR in the scope of the Bill? If there is no evidence for it—I may have missed it, but I cannot find it apart from that one incident—why is the Minister doing it? Is it just that he thinks that it should be within the scope of the Bill, and everybody would say, “Why aren’t you including ANPR?” if he did not? If there is an order-making power, it will be the case that ANPR could be extended so that not only the police used it but also private car park operators, who increasingly use it. Again, what is the Minister saying with that?

Surveillance camera systems, particularly ANPR, are strongly supported by the public. From the evidence before the Committee, they also make a huge contribution to crime prevention. As a result of ANPR, 20,592 individuals, 5% of whom were designated as prolific or priority offenders, were arrested; 52,000 vehicle-related document offences were identified; 41,200 vehicles were seized for other document offences and 2,000 stolen vehicles were recovered. I hope that nothing in the Bill will cause that contribution to be undermined, because those systems are clearly a very effective way of dealing with vehicle and other crime. An inquiry would need to look at the impact of further regulation on ANPR and how it might be undermined by what the Government are proposing.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

First, does the hon. Gentleman agree that the Birmingham case in itself is sufficient to justify the Government’s proposals? Secondly, in relation to the use of ANPR by private companies, has he received representations, as I have, from private individuals who are concerned that private companies are gaining access to that information?

Vernon Coaker (Labour, Gedling)

No, I have not had any.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I have.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman asked me if I had received representations from anyone; the answer is no. I have received one from one person about the re-extension of measures relating to DNA, which we have debated before, but I have received none about CCTV and, from memory, none about ANPR. The hon. Gentleman may have received a representation from one person. The surveillance commissioner makes the point that it is bad to legislate on the basis of isolated incidents when things have gone wrong. That is not to say that such incidents should be ignored, but if we legislated only on the basis of when a law went wrong or when somebody abused it, that would be legislating badly.

Returning to ANPR, the hon. Gentleman’s second question relates to private individuals, who will, of course, not be affected by the Bill as it currently stands, but only by the order-making power. Perhaps he will, therefore, support an inquiry that would look at the necessity for extending the measure to ensure that ANPR, instead of applying only to police and/or local authorities, applied to other bodies.

I have mentioned the deputy chief constable of Northamptonshire police, who, again, points to an unresolved and unanswered question for the Government in the Bill. He is worried that the introduction of a surveillance camera commissioner would mean that a further commissioner would be involved in the regulation of ANPR. ANPR might involve not only the surveillance camera commissioner, as the person responsible for the code, but also the Information Commissioner, because of visual images and data protection. In addition, ACPO is in conflict with the surveillance commissioner, who thinks that he should be involved because ANPR involves information collated from within a vehicle and could therefore be regarded as intrusive. All those things could be addressed in an independent inquiry. Clause 29 introduces a code of practice for surveillance camera systems, and my amendment simply asks on what basis the Government are seeking to do that. What unresolved issues need to be addressed before we charge headlong into the system?

An inquiry into the use of surveillance camera systems could also look at how the new code of practice might be monitored. The Government seek to introduce a surveillance camera commissioner, who will be responsible for the code. Is that the best way to monitor the use of surveillance camera systems? The Information Commissioner is worried about the introduction of a surveillance camera commissioner because of the lack of clarity between the two roles. An inquiry could consider whether we need two codes of practice. The Information Commissioner has a code of practice for surveillance camera systems, and the surveillance camera commissioner will also have a code of practice. An inquiry to consider surveillance camera systems could try to decide which code of practice was more necessary. A number of those who gave evidence to us said that that was potentially a problem.

Some of our later amendments will deal with the issues in more detail. However, I want to highlight the fact that almost no one who gave evidence objected in principle to the idea of a code of practice. But the Government have failed to explain the overall strategic framework and how the points raised about surveillance camera systems will be addressed. I have mentioned a few of the issues that an inquiry could address. Will the Government address those issues or simply plough on?

The Information Commissioner and chief police officers say that there is a risk of duplication, and we have not even touched on the enforcement mechanisms. The Government’s answer is that at the moment the code is voluntary, and it can be taken into account by the courts should they so choose. An inquiry might look at how effective that would be. The Government’s view is to wait and see how it works, which is not a very powerful argument. The Government say that it is a voluntary code; they expect people to come up to the highest possible standards and they will see how it works.

I want to raise one other point about an independent inquiry. All members of the Committee will be aware that we are a pilot for a public reading stage for the Bill, which means that the public are now heavily involved in our deliberations. We did not have a public reading hearing, which I believe is coming later, but the Bill was named by the Deputy Prime Minister as one of the pilots for it, so there will be a big document for us—the public reading stage report—on what the public think. Any independent inquiry would necessitate the involvement of the public, but one of the problems is that nearly every time the public say something, the Government reject it. Although I have not looked through all of the public reading stage report, it is difficult to find one thing where the public say something and the Government say, “That is absolutely right. We will change what we are doing.” I quote an example:

“A number of individuals commented that the clauses were ‘fairly toothless’, in particular pointing to the non-binding nature of the code of practice. The Government rejects this view.”

There is a bit of an explanation for that, but with regard to CCTV and a code of practice, understanding what the public think is absolutely fundamental. It is a point that I will make later. The hon. Member for Carshalton and Wallington asked me about that. Although I think a code of practice is fairly reasonable in some respects, I have not had many people rushing to me and saying that they are really worried about CCTV and that it wakes them up at night. I have had lots of people come to me about counter-terrorism, but not about CCTV.

An independent inquiry could also look at what a code of practice should be and what is in it. We have it before us now. The Government have begun a consultation on the code of practice, but that ought to have happened before the Bill. We are consulting people now on what should be in the code of practice, and there is scope for the Secretary of State to alter, amend or adapt the code. However, as we are a pilot for a public reading stage, we should have consulted the public on what should be in the code—or on any other matter—before the Bill’s proceedings. It strikes me as rather odd that that is taking place now.

Through the amendment, I have raised a series of doubts, problems and issues about CCTV, the code of practice and what is in the Bill. The legislation on CCTV and other aspects lacks a focal point—the symbolic, real dynamic legislative change that would drive things forward—and perhaps, as some people have suggested, a debate on the privacy commissioner. Some of the Government’s thinking is confused and piecemeal. The amendment is an important one, and it will be interesting to hear the Minister’s answers to some of the questions.

The Local Government Group was asked at the evidence session to send us evidence about CCTV. It was asked what evidence it had to show how significant CCTV was, and it sent us, in the submission we have just received, a whole range of examples where CCTV has made a difference. I know that the Minister will say that the Government are not opposed to CCTV and that they understand its importance, and that would be a fair comment. The LGG points out that there are

“a number of high profile cases where CCTV has been instrumental in bringing criminals to justice including in the Jamie Bulger case, the 21st July 2005 bombings in London and the murder of Ben Kinsella”

as well as other murders. It continues:

“A Scotland Yard study…revealed that in 90 murder cases over a one year period CCTV was used in 86 investigations”.

The inquiry would look at what changes we need to make to the law, the code of practice and the regulatory framework, but the important thing is how we do that in a way that does not impact on the difference made by CCTV to the safety of communities, the confidence that people feel when walking around their streets and the prevention and detection of crime. They are real issues, and I shall be interested in the Minister’s response.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I too welcome members of the Committee back after the Easter recess to continue our consideration, scrutiny and detailed discussion of the Bill. I certainly welcome the continuing exchanges between the hon. Member for Gedling and me, which we have had over a number of years on these and other matters, and it is a pleasure to be able to continue that discussion this morning.

The interesting thing about the hon. Gentleman’s comments and approach is that he is struggling to find an objection to our proposals on CCTV. He accepted that when he was a Minister, he, and the previous Government more generally, considered introducing a code of practice, but did not quite get round to it. That is the point at issue: his amendment seeks to defer rather than take action.

The hon. Gentleman will remember clearly our discussion on surveillance in Westminster Hall two years ago, following the report on the surveillance society published by the Select Committee on Home Affairs. He and I had a number of such debates and discussions in March 2009. At that time, when he was in a position to take action, he did not appear to have commissioned the independent appraisal that he is now seeking through his amendment. The amendment therefore seems to be about buying time and wanting to look further at things, when we already have the Home Affairs Committee report, the House of Lords report and various other evidence. It was equally interesting to hear his comments about the concerns on the issue, and whether that was a relevant factor.

When the hon. Gentleman was a Minister, the Home Office commissioned an Ipsos MORI survey on CCTV. While he is absolutely right to highlight the support for CCTV systems, that report also highlighted the fact that 23% of people said that CCTV cameras made them feel too watched. Therefore, to suggest that there are no concerns downplays the survey and the public analysis that was probably undertaken when he was a Home Office Minister. Rather than waiting to see what further events may occur, we believe that it is important to put in place a mechanism such that there is some form of regulation through the code of practice as set out in the Bill. The hon. Gentleman made fair points about some of the details and arrangements, which we will undoubtedly examine further when discussing other amendments.

Perhaps the hon. Gentleman thinks that the situation is static. I do not think that can be so, because he has looked at the issue quite carefully himself and must know that it is not static. Technology has changed markedly over a number of years, and to establish a commission to look at things almost implies that we will end up with one point that remains the same and there is no further change, and then it will happen again. That certainly has not been the experience. Technology and the way we engage with it continue to change, and attitudes may also change.

At the heart of the Government’s proposals is a desire to ensure that CCTV commands the confidence of the community it serves. The hon. Gentleman and I are on exactly the same page about that; he said precisely those words to me on 19 March 2009 during our Westminster Hall debate on the surveillance society. I therefore do not think that there is a disagreement in principle or a fundamental difference between us on the issue. The difference is that we believe that the form of regulation we propose will help to instil the necessary trust and confidence in CCTV and automatic number plate recognition systems, so that they can continue to do precisely the things that we want them to do on the issues that the hon. Gentleman has highlighted, using CCTV in a manner that ensures that crime is reduced and offenders are brought to justice. It is therefore about ensuring that there is trust and confidence in the systems to do what we want them to.

Tom Watson (Labour, West Bromwich East)

I am not as clued up on the matter as Members on the Front Benches, but I think I know where the Minister is going; there will be a kind of reasonableness test as a result of the measures. Is the intention under the regulations to have fewer CCTV cameras? If so, will there be a monitor? How will he ensure that the objective of the amendments is achieved?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Gentleman may appreciate, we as a Government do not set targets with a numerically based approach. We want systems that are effective and we want the public to have confidence in how CCTV is used, so there is no underlying intention behind the proposals necessarily to reduce the number of CCTV cameras. It is more that we want to ensure that there is trust and confidence in how they are applied and where they are sited, and that they have the appropriate support from the public. It is about looking at the issue in a broader sense, so that cameras are able to achieve the end result that collectively we all want to see.

Tom Watson (Labour, West Bromwich East)

I am grateful to the Minister for letting me come back at him, in what will be my last contribution on this clause. To allay people’s fears, those who think that the Bill is just about ripping down CCTV cameras can be reassured that that is not the case. With the regulations, we might conceivably see an increase in the number of properly regulated CCTV cameras. Is that a fair assessment?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Certainly, we are not looking at the issue as a numbers game; it is about trust and confidence in how CCTV systems are applied. The hon. Gentleman will appreciate the concerns about Project Champion. As a west midlands MP who saw the local coverage, he will feel more acutely than other members of the Committee the impact of that challenge. It takes only a few such cases to start to erode overall confidence in the use of CCTV systems as a whole, which would be damaging and harmful from a crime prevention and criminal justice approach.

It is important to state that we believe in the significance of CCTV systems and of the benefits of their utilisation. We want to ensure that by virtue of appropriate regulation, they continue to inspire trust and confidence and to deliver on that intent. We are seeking to bring forward a code of practice, and the hon. Member for Gedling has broadly accepted that that is a sensible means of travel. It would be wrong to stop doing that, and to say that we need yet more evidence, despite the evidence obtained over the past few years. It is better to legislate now to put a code of practice on the statute book, while understanding that the issue is likely to develop. Technology and its application are likely to require flexibility in the use of cameras, which the Bill’s approach will achieve. The flexibility in the code of practice—for instance, the ability to add to those who are subject to the code—will achieve that as practice, technology and indeed attitudes develop. To have flexibility in the Bill is important, sensible and the right approach, given what I have said about the desire to ensure that CCTV continues to have people’s trust and confidence and is not seen as spying on them, but as supporting them, giving them confidence and ensuring that we live in a safe society.

I am in no way downplaying the hon. Gentleman’s points about the criminal system and the use of technology, including to deal with counter-terrorism, where CCTV plays an important role. CCTV should continue to have the relevant public support. As I have already highlighted in the context of the Ipsos MORI survey undertaken by the previous Government, there was an issue.

It is right to consider information provided to us in the form of written evidence and at the Committee’s oral evidence sessions. Graeme Gerrard, a deputy chief constable and the ACPO lead on CCTV, said:

“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.”––[Official Report, Protection of Freedoms Public Bill Committee, 22 March 2011; c. 16, Q34.]

Andrew Rennison is the interim CCTV regulator. He was appointed by the previous Government, but he has our support. We certainly regard as important the work that he has been undertaking in this arena, which is why it leads into the proposals that are contained in the Bill. He was persuaded that the proper approach would be to start with publicly owned cameras and then to develop the system, rather than going for the symbolic, totemic, big-bang approach that the hon. Member for Gedling has alluded to. He was persuaded that it was better to approach the system as we have done, and to consider how to expand and develop it more widely as circumstances change.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the Minister agree that it is likely, even with a voluntary code, that some private operators, particularly those who are working in partnership with the public sector, will feel that it is in their interests to adopt the voluntary code of practice to give people confidence?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I very much agree, which is why the legislative impact at this stage is prescribed as it is. It is certainly intended to have a broader application. As we stated in the consultation document, we need ongoing analysis and assessment of how the code is being applied. If it is not working as we intend and if it is having the effects that the hon. Member for Gedling highlighted, the Government will consider the matter further at that stage. The document is not static, as we will discuss in due course when we consider the role of the commissioner and the reports provided by the commissioner about the adoption and use of the code. It is a moving situation, and we want to keep it under review to see how the code is being applied. The Government might need to take further steps if the code is not expanding further in practice around the core groups that have been identified in the Bill.

We think that it would be a mistake to defer—to stop and to say, “We don’t think that anything is required at this point. We want a further commission.” Such a commission would no doubt take several years to conclude, by which time the world, technology and practice will have moved on. Although I recognise the points that the hon. Member for Gedling has sought to explore in his amendment, it would be a retrograde step to say, “We don’t need to do anything; we need a further commission.”

Interestingly, that seemed to be the approach of the previous Government. Perhaps they recognised that there was an issue with surveillance, but they thought, “Let’s put it off for another day. Let’s not do anything. Let’s see how things carry on. Let’s have another commission and—in essence—kick this into the long grass again.” That approach was mistaken. We want to ensure that CCTV benefits from continued trust and confidence. We do not want sudden issues to start to erode that trust because there is no mechanism to ensure that the public feel that there is a check and balance—a framework for the system. The code of practice is intended to provide such a framework. We are consulting on it at present and it is important to have that consultation.

Jim Shannon (DUP, Strangford)

On the code of practice, the demand from the general public who wish to have CCTV balances against those who have concerns about it. Because of antisocial misbehaviour and illegal activity, will the demand for CCTV outweigh the concerns about it?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman raises an important question relating to the pre-planning stages of the adoption of a CCTV system. If there is a sense that the system will be beneficial, it will have public support. That is one of the principal points that we are consulting on to flesh out in detail the code of practice and what it might mean. A specific section deals with the pre-planning stages. It deals with the assessments that might be appropriate, the safeguards that might need to be in place, and the consultation with relevant partners, and, indeed, the public, that may be appropriate in the development of CCTV. We are asking about the preparatory checks and balances that should be included. That is very much part of the consultation, which runs until 25 May, on the code of practice itself. It is important that we ask such questions to ensure that the code embodies the sense of support revealed in the Ipsos MORI survey and the support that we know is there. At the same time, it needs to address the more critical and negative aspects, such as people thinking that they may be spied upon, and perhaps the issues that have arisen from Project Champion as well.

It is important to introduce the code of practice. Putting it off for another day is not a sensible policy. I heard the points that the hon. Member for Gedling very sensibly made in a measured way. I will come to the more detailed points on the interrelationship between commissioners when we move on to further amendments. Having listened to the points that we have made, I hope the hon. Gentleman will recognise that there is a time for action and the need for a measured, balanced and sensible approach, which the Bill delivers. I therefore hope that he will be minded to withdraw his amendment.

Vernon Coaker (Labour, Gedling)

I thank the Minister for his response and his remarks. I understand that we will come on to some of the other points that I raised. But with regard to the inquiry, the Minster is flying blind. What is the Government’s estimate of the number of cameras held by police and local authorities? What is their estimate of the number of private cameras—the point made by the hon. Member for Carshalton and Wallington—that actually move on to public spaces? As my hon. Friend the Member for West Bromwich East said, what are the Government trying to do? Do they want more or fewer cameras? The Minister referred to the need for confidence, and I agree—of course we need confidence. I do not disagree that there should be a code of practice. The Minister chided me slightly and said that we wanted to put it off for several years. I do not want to do that, but I want legislation that is based on evidence and research. No doubt, therefore, when we get on to some of the other points in the Bill, the Minister will explain about the research that shows there is not a problem and not an unintended consequence, so I shall not press the amendment to a vote. I simply want to understand.

The Minister’s point is that the code of practice will increase public confidence in the use of CCTV. He will need a baseline—the current level—in order to understand whether the surveillance camera commissioner, who no doubt will be responsible for monitoring it, will see a rise or a decrease in that confidence. My amendment was tabled simply to try to start to understand the evidence base and the research that has been taken into account.

The witnesses raised some real issues, which we will need to consider, and the Minister will need to explain in some detail how those issues will be addressed. Before I withdraw the amendment, I will finish with this point. I talked about a great strategic, totemic principle. The Bill that we have before us makes some reasonable amendments to existing legislation. I am not saying that this is the right way forward, but it does not have at its core, at clause 1, part 1, the establishment of a privacy commissioner, encompassing all the various other commissioners that deal with this and that—for example, such a commissioner to review the use of surveillance cameras and such a commissioner to review the use of RIPA. A privacy commissioner would pull all of that together. The Minister chides me for where we are and the number of research projects, but I chide him for the number of new commissioners he is setting up within the Bill. I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I beg to move amendment 94, in clause 29, page 19, line 35, at end insert—

‘(c) the importance of CCTV to community safety and crime reduction.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following: amendment 95, in clause 29, page 19, line 35, at end insert—

‘(3A) Such a code may, in particular, include provision on—

(a) any potential improvement in public safety and crime reduction, and

(b) the significance of a camera as a deterrent to crime.’.

Amendment 96, in clause 29, page 20, line 8, leave out ‘need not’ and insert ‘must’.

Vernon Coaker (Labour, Gedling)

We have to make the Government Whip earn his money. He needs to be able to say “Aye” and “No” at the right places.

These are simple, but none the less important, amendments. The Committee will note that clause 29(2) lays out that the code

“must contain guidance about one or more of the following”.

The hon. Member for Strangford was alluding to this point, as was my hon. Friend the Member for West Bromwich East, but most of the public, as far as I can see, anecdotally—if the Minister chides me, I do not have research—are in favour of CCTV. I do not have people coming to me, saying, “Vernon, can you please make sure that you get rid of all these CCTV systems?” I have not had one. No doubt other Members will turn up and say that they have had one. Fine. I am sure we have all had one. I had someone come to see me about spaceships once. I am sure they exist, by the way. People come to see us about all sorts of things.

I have not had one person come to see me and say that the CCTV systems around Gedling or Nottingham are undermining their personal privacy or things in their neighbourhood. What I get—I have had loads, not only one—is loads of people demanding more CCTV in their areas. I know that this is the Public Reading stage pilot Bill, and that the Government’s approach is to say, “Yes, it’s a pilot. We will ignore what the public say,” but I suspect that that is the experience of the vast majority of Members of Parliament in their surgeries and their communities. That is why I am astonished that I can find nothing on that in the Bill, which is why I have tabled some of these amendments.

Hon. Members will see that amendment 94 is about the

“importance of CCTV to community safety and crime reduction.”

It is a bad move for those who want to be elected to say that the public are wrong. Those who tell the public that get found out in the end. Unless Government Members or my hon. Friends can tell me that I have got this completely wrong and that there are queues of people demanding that CCTV not be put up in their areas, amendment 94 seems to be important, because it would mean that there would be guidance in the code stressing the importance of CCTV to community safety and crime reduction.

Mark Tami (Labour, Alyn and Deeside)

Does my hon. Friend agree that the Government should publish all the letters and evidence that they have had to support their argument?

Vernon Coaker (Labour, Gedling)

The Government will probably say that they have. Unfortunately for the Government, there is not a lot of evidence to say that this is a huge problem. To be fair, it was part of the coalition agreement. The Liberal part of the coalition is much more enthusiastic about aspects of this than other parts. This is not a probing amendment. I like the Government Whip and I want to be fair to him, so that he does not have the awful experience that he nearly had at one occasion in a previous sitting, where he thought that the hon. Member for Strangford was just going to come in. The serious point is that CCTV makes a fundamental difference to the way that communities feel about their area. They believe that it enhances community safety and helps in respect of confidence. They want effective CCTV camera systems. The complaints that I receive about CCTV are not that they exist, but that sometimes the images on the cameras are not as clear as they should be. Communities want to have more powerful CCTV cameras with higher definition and a 360° rotation, not to have them taken down.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman seems to be rowing back from his previous position when he saw some merit in a code of practice. He is saying that there is not evidence to support a code of practice, but that he accepts the need for it to be effective, in order to instill trust and confidence. I am trying to understand his argument better.

Vernon Coaker (Labour, Gedling)

I have said that I can see the need for a code of practice. The amendment says something about what should be included in the code. There should be a reference to the importance of CCTV to community safety and to crime reduction. I am also saying to the Minister that I do not support such a code from the point of view that there is a huge demand for it from vast members of the public, who are concerned about privacy. I accept that there have been one or two examples of the inappropriate use of CCTV and ANPR, so it is not something that is illogical or something that we should not do; it might be helpful to publish a code of practice.

I accept the hon. Gentleman’s argument that we can help to maintain public confidence in such a way, but I do not support a code of practice for CCTV from the starting point that vast numbers of people consider it an infringement of their privacy. I support it because I want to make sure that we do something about some individual anomalies that have arisen, but I do not want a voluntary code of practice in place, which in future can undermine the provision of CCTV systems in communities, shopping areas and other places where the public wish to see them. People consider them important in tackling community safety, in preventing crime and in increasing their confidence.

John Robertson (Labour, Glasgow North West)

As we say in politics, perception is everything. The perception in our community groups is that CCTV protects them. Groups of people, not individuals, ask me for CCTV, particularly in inner-city areas where there is deprivation and high criminality. Such areas really need CCTV, and it is a perception that people are a lot safer as a result of it. I also believe that they are safer.

Vernon Coaker (Labour, Gedling)

That is a very good point. My hon. Friend supports what I am saying. Perception is important. It is also a fact that people understand what works in their communities. They know that CCTV makes a difference. They know that it makes them feel safer. They know that it prevents crime. As I have said before, what frustrates people is that sometimes the CCTV system is not as powerful or its images are not as clear as they hope. Their frustration comes from those facts, not that the CCTV system was there in the first place.

CCTV is important, and it needs to be covered by the Bill. No doubt the Minister will say that it is contained within clause 29, subsection whatever, and that, if read properly, it will mean exactly what the shadow Minister is trying to achieve through his amendment. However, our constituents consider CCTV to be extremely important. Alongside amendment 94 is amendment 95, which would add to the code potential improvements in public safety and crime reduction, and the significance of a camera as a deterrent to crime. Similar arguments can be made for both amendments.

I will not, for reasons of time, go over all the arguments. The Minister knows that amendment 96 is included in the group, and he said that we would return to the various issues that I have raised when discussing amendment 93. Amendment 96 asks why the code will deal only with the police and local authorities. Will the Minister give us more detail on why it is only through an order-making power that the provisions of the code may be extended to other organisations? If he thinks that it is important to name the police and local authorities in the Bill, why should other organisations not be named if, as the Minister said, the clause is about maintaining confidence? I shall be interested in what the Minister has to say on amendments 94 and 95. I will not go into amendment 96 in any more depth because I have raised the issues when we debated the previous group of amendments. If we are to maintain confidence in CCTV, we must understand that the public out there see it as an important tool in the fight against crime, antisocial behaviour and criminality.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Again, I do not think that there is any particular philosophical difference between the hon. Member for Gedling and I. If he looks at the consultation that we are undertaking on the code of practice, he will see that we have incorporated a section on the benefits of CCTV, which specifically mentions crime prevention and detection, counter-terrorism and criminal justice as three significant benefits of the use of CCTV. I do not think that there is any pointed issue or difference; we are not suggesting otherwise, or saying that that is not the case, or that the Government take a different view on the important use of CCTV for those issues.

Where there is a weakness, which the hon. Gentleman highlighted in the debate that he and I had some two years ago, it is that even he was not interested in playing the numbers game. He said:

“There could be 300 cameras or there could be three. Their effectiveness and placement are what is important.”—[Official Report, 19 March 2009; Vol. 489, c. 332WH.]

That is right, which is why when we look at the challenges on the matter, sometimes the use of the equipment, its locations and the systems used do not necessarily give effect to what we wish to see. That is why clause 29 incorporates the provisions on the development of systems, the use of images, the consideration of whether to use cameras, the type of systems and the technical standards. It might not come as too much of a surprise to the hon. Gentleman to hear me say that the very point that he is seeking to raise in his amendments will be dealt with or is implicit in the provisions contained in the Bill and the Government’s approach on the consultation on the points that he has highlighted.

The hon. Gentleman again flagged up the incremental approach that the Government have taken in limiting the statutory application of the code of practice at this point. I again point him to the comments of Andrew Rennison, the interim CCTV regulator. We have taken soundings off him and have listened to him on the guidance and experience that he has applied over the period in which he has been in place, looking at the very issues that the hon. Gentleman has sought to highlight. Andrew Rennison came to the conclusion that that incremental approach was the right way to achieve an effective code. In many ways, taking account of the comments made by my hon. Friend the Member for Carshalton and Wallington in his earlier intervention, simply specifying groups in the Bill does not mean that it will not have a broader application; it will. The approach of having regulation, and setting and applying standards, means that those standards will be applied more broadly.

The provisions could in some ways be categorised as future-proofing, ensuring that we look to the future and to the issues of trust and confidence that we discussed in our last debate and which the hon. Member for Gedling has again highlighted. Although, as is shown by what I quoted, I agree with him that playing the numbers game is not the most appropriate way to consider the problem, it is interesting to note that the evidence—he had the survey at his fingertips when he was in a position to do something about it—showed that, as I have already mentioned, 28% of those surveyed by Ipsos MORI for the Home Office said that there are too many CCTV cameras in their local area, and 23% said that CCTV cameras make them feel too watched.

The hon. Gentleman talks about evidence, but he had evidence at his fingertips that implied there was an issue, albeit he clearly did not feel that he wanted to action that or recognise some of those concerns raised at that time. Even he is not suggesting that there is not an issue requiring the application of a regulatory framework, although he is looking for further information and we want to bring forward our proposals.

Tom Watson (Labour, West Bromwich East)

By way of a question, may I make a point to the Minister? Using market research is not necessarily a great way of deciding what policies to implement in legislation. If the Minister is saying that 28% of people—[ Interruption. ] I am sorry, but there was a sedentary heckle that I did not hear. If the Minister is responding to the fact that 28% of people feel concerned about CCTV, nothing in the Bill addresses their concerns that there are too many CCTV cameras. He has just said that he is not legislating to reduce the number of them, so I do not understand why he clings on to that Ipsos MORI research.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Far from it—I am not seeking to cling on to anything; I am merely seeking to highlight the survey undertaken by the hon. Gentleman’s Government. They clearly felt that it was important to do that work, because they would not have done it in the first place if they saw no need for it. All I am saying is that my fundamental driver is seeing that trust and confidence in the systems is maintained and assured in the future. The survey points to concerns about that trust and confidence driver, on which the hon. Gentleman and I have already had an exchange in Committee. The only reason for my highlighting his Government’s Ipsos MORI survey is to identify that there is a potential question or issue on trust and confidence. That will benefit from having the code of practice in place, which is simply the point that I am seeking to make to the Committee. I simply underline the need for the code of practice to give effect to that trust and confidence issue.

Tom Watson (Labour, West Bromwich East)

It was the sedentary hecklers who got me moving on this point, so if they continue I will just carry on. I fail to understand why, if the Minister is responding to the research—you have made a conclusion and you are saying that there is public concern about CCTV cameras—you have no evidence to show that just producing a new regulatory framework will reduce it. I am sorry to use “you”, Mr Streeter; I am getting back into the hang of it after being away for a few weeks. The conclusion that the regulatory framework will increase trust is not based on any evidence at all. It is merely the Minister’s belief that it will increase trust in CCTV arrangements. Market research says that people think there are too many cameras; that is what the Lib Dems were going on about, and that is why we have this ridiculous piece of legislation.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is interesting that the hon. Gentleman suggests that providing protections and safeguards is not appropriate and that it is ridiculous in some way.

Tom Watson (Labour, West Bromwich East)

That is not what I am saying.

James Brokenshire (Conservative, Old Bexley and Sidcup)

It seemed to be what he was suggesting. He used the word “ridiculous” in relation to the legislation. I am surprised, because I know that he takes such issues seriously. I am sorry if I have mischaracterised him in some way. I genuinely would not want to do that because I know that he considers the issues very carefully and seriously. We do not regard the measure as unnecessary. We have listened carefully to the points made by a number of people. The hon. Gentleman will know the comments of Sara Thornton, the chief constable of Thames Valley police, in relation to Project Champion and the disquiet that was caused around that. We have considered feedback from the ACPO lead around CCTV, and the interim CCTV regulator that the hon. Gentleman’s Government appointed, so I think there is a strong prevailing sense of the need for a regulatory framework that is then able to respond further. It is not something that is simply set in stone. For the reasons that I have already alluded to, the code applies a flexible approach. It can respond to changing circumstances and address that fundamental issue of trust and confidence, which is at the very heart of the debate that pervades this very issue in relation to CCTV and other issues that we will get on to.

Coming back to the amendment proposed by the hon. Member for Gedling, we see it as unnecessary. We believe that the whole concept and the purpose to which CCTV is applied is intrinsic. While I recognise the seriousness he attaches to the use of CCTV systems, and indeed the seriousness we attach to it, we do not believe his amendment is necessary.

Vernon Coaker (Labour, Gedling)

I shall not delay the Committee too long. The Minister says that the matter is included within the consultation, which is currently going on. That may be the case, but I think this is a hugely important issue. Any code on CCTC should have regard to the importance of community safety and crime reduction. That was the fundamental reason for the placing of CCTV systems in communities and for the use of ANPR and all such systems. To have a code that does not lay that out in primary legislation is a mistake and therefore I want to press the amendment to a vote.

Vernon Coaker (Labour, Gedling)

I beg to move amendment 97, in clause 29, page 20, line 11, at end insert—

‘(za) Representatives from Community Safety Partnerships,

(zb) Neighbourhood Watch,

(zc) Other community groups who make representations to the Secretary of State.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following: amendment 54, in clause 29, page 20, line 21, at end insert—

‘(ga) local authorities within the meaning of the Local Government Act 1972,

(gb) the Greater London Authority,

(gc) the Common Council of the City of London in its capacity as a local authority,

(gd) the Sub-Treasurer of the Inner Temple or the Under-Treasurer of the Middle Temple, in their capacity as a local authority,

(ge) the Council of the Isles of Scilly,

(gf) parish councils within the meaning of Local Government Act 1972,

(gg) Police and Crime Commissioners,

(gh) Police and Crime Panels,

(gi) The Mayor’s office for Policing and Crime,

(gj) the Common Council of the City of London in its capacity as a police authority, and

(gk) the Victim’s Commissioner.’.

Amendment 98, in clause 29, page 20, line 21, at end insert—

‘(h) any written evidence or submissions from any of the groups listed above must be published in full by the Secretary of State.’.

Amendment 55, in clause 33, page 23, line 13, at end insert—

‘(ga) local authorities within the meaning of the Local Government Act 1972,

(gb) the Greater London Authority,

(gc) the Common Council of the City of London in its capacity as a local authority,

(gd) the Sub-Treasurer of the Inner Temple or the Under-Treasurer of the Middle Temple, in their capacity as a local authority,

(ge) the Council of the Isles of Scilly,

(gf) parish councils within the meaning of Local Government Act 1972,

(gg) Police and Crime Commissioners,

(gh) Police and Crime Panels,

(gi) The Mayor’s office for Policing and Crime,

(gj) the Common Council of the City of London in its capacity as a police authority, and

(gk) the Victim’s Commissioner.’.

Vernon Coaker (Labour, Gedling)

This amendment takes up again the theme of the previous amendment. Members of the Committee will note that it relates to subsection (5), which sets out the people whom the Secretary of State must consult when preparing the code. The Minister will say, given that paragraph (g) covers

“such other persons as the Secretary of State considers appropriate”,

no doubt people covered by the amendment will be considered appropriate. However, the Government have a mindset with respect to the clause. Labour Members backed the amendment that referred to the prevention of crime and the importance of ensuring community safety and said that such matters should be included in the Bill, but that was rejected by the Government.

Under amendment 97, consultation should be not only with people under subsection (5), important though of course they are. What about the voice of the community? Why should that not be covered by the Bill? Is it not as important as the voices of others who operate the systems? Those to whom the amendment refers operate systems on behalf of the community. They believe that such systems add to confidence, prevent crime and catch criminals. The Government consider that such people are so important that they have to be named, but they do not believe that representatives of community safety partnerships should be consulted when preparing the code. They do not believe that representatives of Neighbourhood Watch should be consulted.

I should have thought that the Government were in favour of localism. I thought it was their big thing. I hope that Conservative Members will vote for the amendment. It covers localism. I say power to the community. Power to Neighbourhood Watch, power to community safety partnerships and power to other community groups that want to make representations about such matters.

Mark Tami (Labour, Alyn and Deeside)

Power to the people.

Vernon Coaker (Labour, Gedling)

I hesitate to use that phrase. People would perhaps see me as going too far.

Such matters show the mindset of the Government. They show one side of the argument rather than the other. Of course, such people should be consulted—as should those to whom the amendment refers. Why do the Government think that those listed under the clause are so important that they have to be consulted, but that representatives of the community are not as important? In other words, why are those who benefit from camera systems CCTV not as important as the Association of Chief Police Officers? The Minister says that such people will, of course, be consulted, but why are they not listed under the Bill?

By listing those whom the code would affect under amendments 54 and 55, we would add to the Bill people such as the victims commissioner, and members of police and crime panels who must have regard to the code. Why should the victims commissioner not be consulted automatically in respect of preparing the code or how it operates? Why on earth have a victims commissioner if we are not to ensure that a victims commissioner is consulted on matters that are in place to prevent people from becoming victims? I fail to understand it. As I have said, the only reason that I can think of is that the Government see it from the viewpoint of those who operate the systems, rather than that of those who benefit from the systems. That is the whole point of not only this group of amendments, but the previous group. If people were looking at this and thinking about it, they would see it as reasonable to say that there should be a recognition in the Bill of the importance of the consumer of the CCTV system, rather than the producer.

As I have said, this Bill is the pilot of the Public Reading stage. Where are the public in the Bill? Where is the voice of the community? Where is the voice of the victim? Where is the voice of the people who feel that CCTV benefits them? Where is the voice of all those who come to my surgeries demanding more CCTV? Where is the voice of those organisations that queue up at surgeries demanding more CCTV, as the hon. Member for Strangford and my hon. Friends the Members for Glasgow North West and for West Bromwich East said? The frank answer to those people is that the silence in the Bill is deafening. It is not good enough for the Government to include it in a catch-all paragraph (g). It should be in the Bill and given the prominence and importance that other people are given by their inclusion.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I certainly hear the passion with which the hon. Gentleman has moved his amendment. He talks about the voice of the community, but we are consulting on the code currently. This is a public consultation. Anyone’s voice is able to be heard in it. I encourage his constituents, and those of any member of this Committee, to take part in the consultation, which, as I have already alluded to, runs until 25 May. That is a 12-week consultation for the public to be able to have precisely the say that the hon. Gentleman seeks to chide me on, saying that the public are excluded and that all those bodies are somehow out of the loop. They are welcome and I encourage them to take part in the public consultation, which is already engaged. We welcome their participation in it.

I would, as a point of detail, point the hon. Gentleman to clause 29(5)(a), which reads across to clause 33 and the defined relevant authorities, which include the Greater London Authority, local authorities and any chief officer of a police force in England and Wales. Together with clause 29(5)(a), it can be seen that we are seeking to incorporate representatives of those persons’ views within this specific part of the Bill. For the hon. Gentleman to say that in some way they do not count and that there is to be some sort of exclusion of those views is wide of the mark.

Vernon Coaker (Labour, Gedling)

Can the Minister confirm that, while clause 33(1)—linked to clause 29(5)(a)—says that a relevant authority must have regard to the code, under the defined relevant authorities later in the clause, the victims commissioner is not included?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, the victims commissioner is not a relevant authority, because the relevant authority relates to those persons who are subject to the code. The hon. Gentleman was suggesting that local authorities and police forces were not covered, that their voice did not count and that they were left out and excluded from the Bill. I am seeking to highlight to him that thought has been given to this and that it is addressed in the Bill already.

I recognise the hon. Gentleman’s passion and his desire to ensure that there is appropriate consultation and that the parties involved are properly brought within scope, but I gently point him to the fact that some of the language that he used—although I understand his reasons for using it—was a little wide of the mark. That is particularly true when we take into account the public consultation, which is being undertaken to ensure that the voices and views of as many people as possible are framed in the public engagement. We very much welcome that engagement, which is very much at the core of, and in the formulation and development of, the code.

The hon. Gentleman will say that that does not go far enough, but the Secretary of State can consult other people, and that is very much embodied in the clause, which refers to the people it may be appropriate for the Secretary of State to consult. Members of the groups that the hon. Gentleman has identified may well be considered appropriate. There is not some sort of ring-fencing, with only the people specified in paragraphs (a) to (f) being consulted; there is flexibility in the Bill to accommodate consultation.

I hear the hon. Gentleman’s points, but I repeat that these issues have been dealt with. Indeed, the public consultation, which is already taking place, and which people are still very much able to contribute to, allows people’s voices to be heard loud and clear in the formulation of the code and in its continuing review and development. That is intended very much to promote the confidence that we seek to achieve in establishing it and the CCTV systems that protect us all.

Vernon Coaker (Labour, Gedling)

I thank the Minister for his reply. I note that the Government are consulting on who should be consulted on the code, but I am saying that the Bill is going through Parliament, and it is incumbent on me, as the Opposition spokesperson, to say what I think should be in it.

Amendments 97 and 54 are important. Amendment 54 includes the victims commissioner, whom the Minister has accepted is not included in the scope of the Bill. That voice of the community will not be heard as loudly as others, and that represents a mistake in the drafting of the Bill.

In looking at clauses 29(5) and 33(5), the commissioner would be astonished to find that she—the person established by the previous Government, and accepted by this Government, as the voice of those affected by crime, criminality or antisocial behaviour—is not listed in the Bill in the way that other people are. At best, that is a surprise.

If the Government are setting out to name those they think it is important to include in the Bill, the victims commissioner, in particular, should be added to the list. It is not good enough for the Minister to say that it is sufficient for the clause to allow the Secretary of State to consult others as he or she thinks appropriate. That is particularly true with respect to the victims commissioner.

I would therefore like to test the Committee’s views in separate votes on amendments 97 and 54. As amendment 54 relates to the clause, we do not have to wait until later to get it out of the way.

Vernon Coaker (Labour, Gedling)

I beg to move amendment 81, in clause 29, page 20, line 25, leave out ‘of objects or events’.

I say this because I do not have an ego about these things: I need the Minister to help me. I have tabled the amendment because I do not understand the meaning of clause 29(6)(b) and I think that the Committee needs the Minister to explain why it is appropriate. Subsection (6) describes what “surveillance camera systems” means. Clearly, it means CCTV or ANPR, as described in subsection (6)(a), but I do not understand subsection (6)(b), and neither does the Information Commissioner, who thinks that there is a problem with it. Under subsection (6)(b), surveillance camera systems means

“any other systems for recording or viewing visual images of objects or events for surveillance purposes”.

My amendment would simply leave out “of objects or events”. Why are those words included? Does that measure include the processing of views? I do not understand the definition—is a person an object or an event? I want the Minister to explain what it means. I understand that CCTV and ANPR are surveillance camera systems, but what is meant by “any other systems”? Are such other systems precluded from doing anything that processes personal information? The Information Commissioner asked if that includes the processing of views and images of individuals, and if not, why not?

The amendment is probing, because as the Committee can see, instead of being my usual lucid, eloquent, dynamic self, with full cognisance of all the facts, I am struggling. I am sure that the Minister will come forward with a perfectly reasonable explanation, but it does not make sense to me, and it clearly worries the Information Commissioner. We need detailed clarification of what the clause means.

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Gentleman will know from our discussions of previous Bills and in other circumstances, Bills are sometimes drafted in language that provides as broad a definition as possible in order to encompass relevant facts and matters. As he will recognise, provisions are often drawn in to ensure certain things. In this case, for example, we are seeking to define the term “surveillance camera system”. If it could be interpreted as either a CCTV or ANPR recognition system, that might be too narrow a definition, so the provision seeks to provide a definition of systems for recording or viewing visual images or objects or events for surveillance purposes. It provides a broader definition to ensure that we cover what we need to cover.

However, as the hon. Gentleman knows, I am a lawyer, so I take the Bill’s wordsmithing as seriously as he does. I am happy to consider further whether the words that he seeks to delete, “objects or events”, add to the understanding of the paragraph. I am certainly prepared to consider it and ensure further clarity, if required, to address his points or indeed any points relating to the Information Commissioner. I am prepared to consider that genuinely.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

To add to my clarity and that of other Members, will the Minister confirm whether systems used by pubs and clubs to capture the images of people coming into the pub, to be used in case those people are excluded for being involved in fights, will come within the remit of this particular definition?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I suggest that that sort of system would be covered by paragraph (a) as a closed circuit television system. It appears from my reading of the Bill, although I will bow to more detailed knowledge of legal drafting, that such a system would be captured by either paragraph (a) or paragraph (b), although the matter would need to be analysed. It is a system for recording or viewing visual images of people, so there is nothing in my reading of the Bill to suggest that it would not be caught by the definition of a surveillance camera system in subsection (6). I hope that is helpful.

The definition is intended to ensure that the Bill captures surveillance camera systems properly, so it is important that we get it right, given the application of the term elsewhere. As I said, the hon. Member for Gedling highlighted that he wants clarification to ensure that the people who are likely to be surveilled are properly reflected in the drafting of the provision. I will certainly consider closely the point that he highlighted. I thank him for the manner in which he has brought it to the Committee’s attention, and I will certainly give it some consideration to ensure that it properly achieves our intention. The advice that I have been given suggests that it does, but at the same time the whole purpose of the Committee is to test, challenge and scrutinise, and therefore I welcome the challenge that the hon. Gentleman has thrown down. I want to carefully and calmly reflect on his comments, and the comments of others, to ensure that the measure works in the way that the Committee and I wish it to, so that the Bill operates in the way intended.

Vernon Coaker (Labour, Gedling)

I thank the Minister for his helpful reply, for which I am grateful. As I said, I will withdraw the amendment. I do not know whether the amendment is necessary or not. In all honesty, I tabled it because of something that the Information Commissioner raised. I did not properly understand it. Some of it is very technical. As the hon. Member for Carshalton and Wallington said, when we start talking about “any other systems”, what that actually means starts to become difficult. Then we start talking about objects or events and thinking, “What does that include or exclude?” The Minister’s offer to go back and see whether there needs to be further clarification, and whether the drafting is correct, is very helpful, so I am happy to withdraw the amendment. I thank the Minister again for his response and I beg to ask leave to withdraw the amendment.

Clause 30

Vernon Coaker (Labour, Gedling)

We can cover some clauses fairly quickly, but I want the Minister to explain subsection (7), which mentions a draft that would be treated as a hybrid instrument for the purposes of the Standing Orders. I do not remember being on a Committee where a hybrid instrument has been used. According to the explanatory notes, it relates to where one section or group of individuals is disproportionately impacted upon compared with another group, and it is required not by the House of Commons but by the House of Lords.

Will the Minister explain why it is necessary to include subsection (7) in the Bill? What assessment has been made about which groups or individuals are impacted on in a different way to others? I do not know about other members of the Committee, but I have never been on a Committee where a hybrid instrument has been mentioned. I have been in the House since 1997 and I have never heard of it, which just goes to show the wonders of this place. Will the Minister clarify subsection (7) and the need for it?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Gentleman will know, having raised it, the hybrid instrument is a fairly technical aspect of parliamentary procedure, as is the term “hybridity”. He will have seen from reading the explanatory notes that:

“Some statutory instruments which need to be approved by both Houses are ruled to be hybrid instruments because they affect some members of a group (be it individuals or bodies) more than others in the same group. Hybrid instruments are subject to a special procedure which gives those who are especially affected by them the opportunity to present their arguments against the statutory instrument to the Hybrid Instruments Committee and then, possibly, to a Select Committee charged with reporting on its merits.”

I agree with the hon. Gentleman. In the shorter time that I have been in the House, I have not been engaged in hybrid legislation. Such provisions are built into other Acts of Parliament. Therefore, the issue has not necessarily arisen directly in relation to this point.

The clause is intended to give clarity and, in essence, to disapply the procedures or arguments that might otherwise apply in relation to hybridity, because it might, for example, be argued that the rules on hybridity were engaged. This is a technical issue, and the clause perhaps gives clarity and assurance. If the hon. Gentleman or others have concerns about the exclusion of the hybridity provisions in relation to this aspect of the Bill, we will no doubt hear more about that on Report or subsequent stages.

The explanatory notes do not speculate about situations where a draft order could have been ruled to be a hybrid instrument, but it seems likely, if there are issues, that affected groups could air their views as part of the consultation process attending the preparation of the code of practice. In other words, we are consulting, and if there are concerns about hybridity, that will no doubt come out in the public consultation. However, I am not aware of any specific concerns having been highlighted. It may well be that this is a technical, legal, narrow issue and that subsection (7) is set out in the way that it is to give clarity and to remove any doubt or any question.

Vernon Coaker (Labour, Gedling)

I thank the Minister for that. From nods and shakes of the head, it appears that different members of the Committee have had different experiences of the issue; some have heard of hybridity and some have not. However, it would be interesting to know which groups, in the Government’s assessment, will be affected differently. Is it that the police and local authorities will be affected, but not others who run cameras? Is that the issue? Which groups would be affected in different ways, requiring the hybridity principle to be applied? If the Minister does not have that information to hand, it would be of interest to know how different groups would be affected disproportionately.

Clause 33

Vernon Coaker (Labour, Gedling)

I beg to move amendment 100, in clause 33, page 22, line 10, at beginning insert—

‘(A1) The surveillance camera code is not mandatory.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 101, in clause 33, page 22, line 17, leave out subsection (4).

Vernon Coaker (Labour, Gedling)

Again, I will be relatively brief. The amendments go back to some of the debate that we had earlier. The amendments do different things, but in both we are simply asking the Minister to explain why it is not necessary for the code of practice to be mandatory. Could the Government make it mandatory in the future, should they choose to do so? Is there are power in the Bill to change it? I do not think there is, but can the Minister confirm that although the code is not mandatory, there is no order-making power to make it mandatory? I cannot find one, but I do not know whether one is tucked away in clause 96(4) or somewhere else.

If there is no order-making power, what will the Minister do if the belief that a voluntary code will work is wrong? In other words, if there is no order-making power to make the code mandatory, and an incremental, step-by-step, voluntary approach does not work, what is the Government’s thinking on how they will take things forward? I agree that most public bodies, local authorities and police forces will aspire to the highest possible standards, but if the code is only voluntary, what will happen if a Birmingham-type example comes forward? Would people not be surprised if there was nothing that the Government could use to say that the code is there? During the Public Reading stage, the public said that the code of practice will be toothless. The Government reject that view, but that is not what the public feel about it.

As I have said to the Minister, I am in favour of a code of practice, but what is the point of a purely voluntary code? There is no way in which the Government, without coming back to primary legislation, will be able to say, “This has not worked in the way that we thought it would. What do we do about it?” Will exhortation and a belief that everyone will rise to the highest possible standards work of themselves? With the amendments, I am asking the Government to flesh out for us again their view on why it is not necessary to include in the Bill an order-making power to make the code mandatory, should it not work in the way that the Minister thinks is appropriate. I will be interested in his response.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think the hon. Gentleman will recognise the approach on the clause and the code of practice. The bodies that have been caught by the clause—local authorities and the police—have to have regard to the code of practice, and the Bill provides flexibility to expand that requirement to other groups. As I have explained in previous debates on the clause, the approach will be informed by the reports of the surveillance camera commissioner on how the code is working and being applied. That will provide a helpful and important mechanism to assess whether the code is having the intended impact and whether trust and confidence, which we have discussed previously, are at the core of the matter.

If we reserved an order-making power to turn a provision to “have regard to” into a mandatory requirement, we would fundamentally change the intent of the legislation. It would be incumbent on the Government to return to Parliament at that stage to change the intent in that way, given that one would be fundamentally altering the nature and structure of the legislation and meriting the turning of the current structure of the code as embodied in the Bill into a mandatory requirement. There are elements—I know that the hon. Gentleman and other members of the Committee will understand this in relation to, for example, the Data Protection Act—that are already mandatory and which already have sanctions and specific requirements attached. If breached, they will lead to significant and serious consequences. The nature of what we are addressing here means that some issues that relate to CCTV cameras already have mandatory requirements. That is part and parcel of the provisions in the Data Protection Act, which governs and addresses some of the points that are at issue here.

Vernon Coaker (Labour, Gedling)

I was going to ask the Minister to confirm that there is nothing in the Bill—no order-making power—that can change the voluntary code into a mandatory code, but he went on to clarify that there is not.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hope that my comments have helped to explain to the hon. Gentleman our thoughts, the approach that we have sought to adopt, and why we believe that his amendment is unnecessary. There is no power to make the code mandatory in future, which, I hope, reassures him. We will continue to keep under review the code’s operation and the reports that we will receive from the commissioner. I hope that, with that assurance, the hon. Gentleman will be minded to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

The amendment was intended to tease out whether there was an order-making power. I know from experience that it is sometimes necessary to have such matters properly confirmed, because it is not always possible to find those powers in the Bill. I beg to ask leave to withdraw the amendment.

Tom Watson (Labour, West Bromwich East)

I beg to move amendment 43, in clause 33, page 22, line 34, at end insert—

‘(ja) the proprietor of a school within the meaning of the section 579(1) of the Education Act 1996,

(jb) the proprietor of a 16-19 Academy within the meaning of section 579(1) of the Education Act 1996,

(jc) the governing body of a further education institution within the meaning section 90(1) of the Further and Higher Education Act 1992,’.

The amendment is simple—it aims to include schools in the list of relevant authorities that are covered by the surveillance camera code. I propose the measure because I want to be helpful to the Government. I support the direction of travel in providing protection of freedoms for our children. Children in a school environment should be afforded the same protections that they and their parents receive outside it. An increasing body of evidence shows that schools inadvertently contravene the Data Protection Act, because they are unsure how it applies to them. CCTV cameras are ubiquitous in Britain’s schools—some 85% of schools now have them.

The amendment aims to test how far the Government want to make real their stated aims of trying to protect children. I readily admit that I am probably ploughing my own furrow on this matter, but I do not think that there is much evidence to show that CCTV in schools increases safeguarding. I am not sure whether it makes schools more efficient or drives down costs; I am certain of one thing—it reduces privacy, and we should have regard to that in our discussions.

The proposal is a neat way of ensuring that head teachers respect the code and do the right thing by the intention of the legislation. It cannot be right that one in 10 kids’ toilets have unregulated CCTV. That does not feel right to me—we would not want that in the House of Commons; I do not want it in my kids’ schools. That is why I have tabled the amendment.

Vernon Coaker (Labour, Gedling)

My hon. Friend’s amendment is interesting. Perhaps the Minister can reassure him by considering the proposal to see whether people in education should be covered on the face of the Bill or under subsection (5)(k).

The code is voluntary and the measure seeks only to ensure that schools have regard to it; it does not state that they cannot use it, but that they should consider its use in certain circumstances. That is why, in general, I have always supported the introduction of a code and why we are not opposing it. Requiring people to have regard to a code is an important step forward. No doubt Committee members can think of other organisations or bodies that should be included under “relevant authority”.

To be fair, the Government are in a cleft stick, because as soon as we start listing, people say, “Why haven’t you listed x?” as, indeed, I have on occasion. I have sat where the Minister is sitting and said, “We can’t list everyone, and that’s why we have put in a section that says that we can add anyone we feel is appropriate.” The point that my hon. Friend the Member for West Bromwich East is making, and no doubt others could make, about bodies that should be relevant authorities is: which bodies are so important that we should not leave the decision to the discretion of the Secretary of State but include them in the Bill? My hon. Friend has some justification for considering, along with my hon. Friend the Member for Glasgow North West, that this body is of such importance that the Government should look at including it in the Bill. His comment is powerful, and the Government should at the very least consider including this body, perhaps along with others to which other Members can point.

John Robertson (Labour, Glasgow North West)

What kind of discussions has the Minister had with the Department for Education on the issue? I do not have a problem with CCTV, as the Minister knows, but I have a great problem with CCTV intruding on a young person who is just going to the toilet. There is something rather nasty about anyone wanting to put a TV camera in a young child’s toilet; there has to be a bit more meat on the bones. There are rules in our Education Acts to protect children, but here that aspect is completely and utterly ignored and the Minister must look at it. Education is important, and we have to protect our children and not expose them to things that might fall into the wrong hands.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I thank hon. Members for the way in which they have sought to highlight the point. As a father with young kids at school, I have sensitivities about the effective and appropriate use of CCTV systems in the safeguarding of children, and recognise the concerns that have been genuinely expressed in this short debate.

A challenge here is that we are talking about private and public schools—there are different sorts of environments. At the same time as wanting to ensure that CCTV systems are used appropriately, we do not want to become too prescriptive and undermine the very intent behind the systems. The comment made by the hon. Member for West Bromwich East about the Data Protection Act was germane. That is a legal provision with teeth, with mandatory requirements attached. Perhaps there is a lack of understanding of that Act’s application and of how the sense of proportionality is applied. There are, however, complexities attached, which is why we have not sought to include schools and colleges within the ambit of the Bill.

We are in the midst of the public consultation, and I would like to see how that reports back on the code of practice and on the groups that may be encompassed within the application of the code. Aside from the reasons we have already debated under some of the Bill’s other provisions, even if a particular group or organisation were not formally prescribed in the Bill at this stage, we would intend the provision to have a broader application than those groups. It may well be that local authorities themselves, being directly caught, might wish to examine the application of the code in relation to schools and other environments. The issue is clearly emotive. The mix of educational and community activities for which school premises can be used is complex. The issue needs to be considered with great care to ensure safety, security and propriety. I do not want to act rashly now; I prefer to see what the consultation reports back, although I hear clearly the points raised in Committee this morning. I am sure that the question of how the code will apply in the future will be returned to and examined further.

The Bill envisages that the code can be extended to other regulated bodies, and there is flexibility to do so through the order-making power. That may allow the addition of schools or colleges, if that is considered appropriate, but the complexities of the issue require further careful thought to ensure that we do not create unnecessary burdens or misapply the sense of the provision. Fair points have been made in this mini-debate, and we will need to consider them carefully as part of the consultation. I want to see what the consultation reports back before considering what further steps or actions are required.

Tom Watson (Labour, West Bromwich East)

In the short time that the Minister has been in position, he has already gained a reputation for listening and for taking people’s points seriously, so I appreciate what he said. I hope that he will allow me to give him more detail from some of the parents’ interest groups and to make their case to him.

James Brokenshire (Conservative, Old Bexley and Sidcup)

If the hon. Gentleman will send me further details or ensure that such information is properly included in the current public consultation, I welcome that.

Tom Watson (Labour, West Bromwich East)

I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

Subsection (5)(k) will give the Secretary of State the opportunity to add to the list of relevant authorities that must have regard to the surveillance camera code. My hon. Friend the Member for West Bromwich East has already given the example of schools, although we feel that that should be included in the Bill. Will the Minister give us other examples of how the list might be extended? Presumably, the Secretary of State will have the power under the auspices of the clause to include all the cameras that are not currently police or local authority ones. Will the Minister confirm that?

Will the Minister explain to the Committee how subsection (5) relates to subsection (6)? Do they mean that people can be a relevant authority for some of the things they do but not for others, so that they are a relevant authority not because of the nature of what or whom they are but only for specific functions that they perform as a relevant authority? For example, private detectives would not be relevant authorities for what they do, but if they operated a surveillance camera they would be a relevant authority for that purpose. Subsection (6) seems to imply that the functions of a relevant authority can be split, and that such an authority has to have regard to the surveillance camera code in relation only to some rather than all of its functions. Will the Minister clarify that and explain how it will work? If I have read the Bill correctly and that is so, how will the surveillance camera commissioner or whoever is responsible for the code know what is going on with respect to a relevant authority? How will that happen? Subsection (5)(k) gives a large power to the Secretary of State, but I shall be interested in the Minister’s explanation of how subsection (6) relates to subsection (5).

James Brokenshire (Conservative, Old Bexley and Sidcup)

On that specific point, the drafting is intended to cover circumstances when certain bodies may have dual or multiple roles; for example, they have both public functions and private sector functions, and the duty to have regard to the code may therefore be limited to the exercise of one or one part of their functions. I suppose that it is a flexibility-type provision rather than something that would provide a splitting of the roles of public bodies in some way; it is more for where dual roles might exist.

The hon. Gentleman highlighted an issue about the extension to other public bodies perhaps being added in due course and asked what we might have in mind. We clearly specified under the Bill local authorities and the police in relation to the initial approach. Although we will be guided by public consultation, we will also be guided by the reports of the surveillance camera commissioner in respect of future applications. An example has been proffered this morning by a member of the Committee of something that might be considered part of the ongoing review, but we do not have anything in mind in terms of extending the application of the code at this time. We will certainly be informed by the practicalities and by how we see matters developing.

The desire is very much that the code is seen as a means of informing good practice to ensure that we drive up standards and that we give effect to the system’s retaining public trust and confidence. Therefore, the provision obviously extends further than the police and local authorities, although for private sector companies we see a voluntary type of approach. I want the code developed in such a way that it becomes a useful, positive document to which people want to give effect because of the manner in which it has been drawn up, embracing the standards and explaining some of the complexities that might exist in some of the interpretive points of, for example, the Data Protection Act.

I do not envisage the code being set in stone but as something that will develop in time, informed by developments in technology. I do not think that any member of the Committee could second-guess what such technology may lead to in two, three, four or five years’ time. Having a flexible approach is important so that we can move with the change in technology and is the reason why the Bill has been framed as it has. The Government will keep the matter under review, but I hope that Members will be minded to ensure that the clause stands part of the Bill.

Clause 34

Vernon Coaker (Labour, Gedling)

I beg to move amendment 102, in clause 34, page 23, line 23, at end insert—

‘(1A) Before the Commissioner is formally appointed, the candidate must give oral evidence to the Home Affairs Select Committee about the use of surveillance camera systems.’.

The amendment is fairly straightforward. The confirmatory practice is quite good. Should the surveillance camera commissioner be established under the Bill—as it goes through Parliament and survives all the processes—under our proposal, before being appointed, the candidate would give evidence to the Home Affairs Committee about the use of surveillance camera systems. The candidate should have the opportunity to explain their thoughts and views, and state how they see the Bill operating and how they see the relationship between the Information Commissioner and the surveillance camera commissioner, which we will come to in the next group of amendments. They should explain how victims will be given the voice that they deserve, and all those sorts of things. It is a straightforward probing amendment to ask whether the Government see any merit in the proposal.

I would like to see such an approach taken across a range of public appointments; as we know, there have been one or two examples. Before being made chief inspector of Her Majesty’s inspectorate of constabulary, Sir Denis O’Connor gave evidence to the Home Affairs Committee. Those are steps in the right direction, and the amendment seeks to ask the Government whether they see any merit in asking the surveillance camera commissioner to do the same thing.

James Brokenshire (Conservative, Old Bexley and Sidcup)

At the heart of what the hon. Gentleman seeks to achieve is ensuring that the surveillance camera commissioner has the right qualities. We have made clear our intention to combine the new role of surveillance camera commissioner with that of the existing forensic science regulator. The existing regulator, Andrew Rennison, gave evidence to the Committee. He was appointed by the previous Government as the interim CCTV regulator, and he has a considerable amount of grounding and knowledge in the area. I have asked him to stay in that role pending the passage of the legislation, so as to provide continuity. He has already established a wide range of contacts with interested parties, and those will prove helpful in his new role of promoting and monitoring the new code of practice.

As the hon. Gentleman suggested, he raises a broader point, and the role that Select Committees should play in the process of public appointments is an issue that we should consider in the round. The coalition agreement stated that it will strengthen the powers of Select Committees to scrutinise major public appointments, and the Cabinet Office is currently working with the Liaison Committee to deliver that commitment. When the Public Administration Committee considered pre-appointment hearings in 2007-08, it took the view that we should expect them to apply to major auditors, ombudsmen, regulators and inspectors, as well as to those responsible for the appointment system. Others who have looked at the issue, such as the Institute for Government in its March 2011 report on the right role for Parliament in public appointments, have taken a broadly similar view.

The surveillance camera commissioner does not necessarily fit strictly within those criteria, given that the role will largely be one of monitoring and reporting. The Cabinet Office and the Liaison Committee will review the existing criteria and the list of posts subject to pre-appointment hearings, and I do not want to pre-empt the outcome of that work. That is not to say that the Home Affairs Committee should not take an interest in the work of the commissioner once appointed, including taking evidence from him or her as the role develops. At this stage I am not persuaded that a pre-appointment hearing is appropriate, and I would like to see the results of the work done by the Cabinet Office and the Liaison Committee before considering the issue further. With that reassurance, I hope that the hon. Gentleman will be minded to withdraw his amendment.

Vernon Coaker (Labour, Gedling)

I will withdraw the amendment. It relates to a broader point; the practice of confirmation and giving Parliament a wider remit to consider who is appropriate for a particular job, rather than just the Secretary of State—whoever that may be—would be an important improvement to our processes. I mentioned the surveillance camera commissioner because that is the subject of the legislation, but there is a broader point and as the Minister said, the Government are looking at the matter and there is a Cabinet Office report. Hopefully that report will be produced speedily, and the matter can be considered in the context of the recommendations made. I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I beg to move amendment 82, in clause 34, page 23, line 28, after ‘it’, insert

‘and the processing of personal information if that information relates to the code’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following: amendment 83, in clause 34, page 23, line 28, at end insert—

‘(d) handling complaints and taking enforcement action in relation to breaches of the code’.

Amendment 85, in clause 34, page 23, line 37, at end add—

‘(5) The Secretary of State shall keep under review the functions of the Surveillance Camera Commissioner to ensure that those functions are not duplicated by the Information Commissioner or any other public official.’.

Vernon Coaker (Labour, Gedling)

This set of amendments is very important, because they go to the heart of one of the tensions in the Bill, which is the role of the Information Commissioner vis-à-vis the surveillance camera commissioner. The Government say that will not be a problem and that they will work together, but there will be two codes of practice. Once it is up and running, the surveillance camera code will be monitored by the surveillance camera commissioner. Alongside that, there will be the Information Commissioner, who has published a code for surveillance camera systems. The Information Commissioner’s code is legally enforceable through the Data Protection Act and the legal sanctions within it. If that is wrong, the Minister will be able to correct me.

Amendments 82 and 83 seek an understanding about who is responsible for the processing of personal information as it relates to the surveillance camera code. The situation is quite confusing. Amendment 82 specifically mentions personal information that “relates to the code”. If it was a general reference to personal information, everyone would be able to say that it relates to the Information Commissioner. Is it the case that if personal information relates to the code, it would relate to the surveillance camera commissioner? We need some clarity about that. Does the Minister intend that the two codes of practice will continue, or does he hope that they will merge?

How will personal information collected by surveillance camera systems be processed? Who will be responsible for collecting it? Who will be responsible for monitoring it? Will the surveillance camera commissioner have to pass on personal information, collected as it relates to the code, to the Information Commissioner, or does the surveillance camera commissioner say, “This is to do with the Data Protection Act, and it is, therefore, nothing to do with me”? I do not properly understand how the two systems relate to each other. How will people operating the CCTV system, who must have regard to the code, know whether the part of the code that they must have regard to is the code as it relates to the surveillance camera commissioner or as it relates to the Information Commissioner?

A large number of witnesses—not just the Information Commissioner—have told us that there is a real danger of confusion between the role of the surveillance camera commissioner and that of the Information Commissioner. I do not properly understand how the system will work, how it will be monitored and policed and who will be ultimately responsible. I do not know how people are supposed to understand it. It would helpful to the Committee and to those who read these proceedings for the Minister to lay out in detail the different responsibilities of the Information Commissioner and the surveillance camera commissioner and how they will be reflected in the way that the code of practice will actually work.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman highlights an important point about the relationship between the surveillance camera commissioner and the Information Commissioner. Nothing in the new surveillance camera commissioner’s role will interfere with the current role and responsibility of the Information Commissioner. We expect the two commissioners to work together harmoniously and closely, dealing appropriately with CCTV matters. The hon. Gentleman will know from their evidence that the Information Commissioner and the interim CCTV regulator already work closely together, and that they have an understanding about the remit of their work. We see no reason for there to be conflict between their future roles.

The surveillance camera commissioner will oversee and monitor the code, encourage the compliance of CCTV operators, reveal the code’s effectiveness and impact, and provide advice on it to users, the public or the Government, as requested or as necessary. He will also act as a conduit to the Information Commissioner on data protection. If a matter referred to him is clearly a data protection issue, it will be referred to the Information Commissioner. As I said, the Information Commissioner will continue to have primacy on data protection, and the surveillance camera commissioner will have primacy when dealing with the more practical and technical questions.

There is clarity and distinction of their respective roles, albeit that a gateway mechanism between the commissioners will be needed to ensure that they are applied appropriately. Evidence to the Committee and what I have been told in private discussions give me every confidence that it will be an effective means of operating the code of practice, as envisaged under the Bill.

The hon. Gentleman highlighted the question of whether there should be two codes or one. I seek to clarify the matter. The provisions of the Data Protection Act are legally enforceable, but although it gives guidance on particular aspects of the Act the CCTV code issued by the Information Commissioner is not a legally enforceable document. In that narrow way, it is the Act that is legally enforceable; the Information Commissioner therefore has the responsibility to ensure that the code is legally applied and enforced. I understand the point being made by the hon. Gentleman about the CCTV code of practice as previously published by the Information Commissioner. However, it is not the code that is legally enforceable but the Act under which it seeks to give guidance.

I turn to the question of whether we need one code or two; in other words, whether the Information Commissioner should retain his separate data-protection focused code, or whether it would be better to have a single code of practice as envisaged under the framework mechanism of the Bill. I am considering the matter carefully. The question was flagged up in the public consultation, and I want to hear people’s thoughts on the most effective and sensible way forward. It is a question of ensuring clarity and certainty, and having things in one place would be my starting point, as it seems sensible to have all relevant information on standards and the potential data protection aspects embodied in one code of practice. However, I shall listen to the views of the regulators and other parties before making a formal decision. We are considering the matter carefully.

Tom Watson (Labour, West Bromwich East)

Does the Minister accept that if the functions of the two commissioners were merged, we would not need to debate two codes of conduct?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I do not have much time before we break for lunch, but I can tell the hon. Gentleman that we gave careful consideration to who might be the most appropriate person. Rather than creating a new position—we already have a forensics commissioner and an Information Commissioner—we opted for combining the role with the forensics commissioner so as to reduce administration. There is clearly an understanding between them.

Martin Caton (Labour, Gower)

I remind the Committee that with this we are discussing the following: amendment 83, in clause 34, page 23, line 28, at end insert—

‘(d) handling complaints and taking enforcement action in relation to breaches of the code’.

Amendment 85, in clause 34, page 23, line 37, at end add—

‘(5) The Secretary of State shall keep under review the functions of the Surveillance Camera Commissioner to ensure that those functions are not duplicated by the Information Commissioner or any other public official.’.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I welcome you back from the Easter recess, Mr Caton, and I hope you had a good and restful time.

Before we broke for lunch, we were finishing the debate on the lead amendment, amendment 82, and I was responding to an intervention by the hon. Member for West Bromwich East. To conclude my point, the Government intend to ensure that, in making arrangements for the coming into effect of the new commissioner role, the relationships with other relevant bodies are clearly established. That will include respective roles, boundaries and potential areas for liaison or joint working. Those relationships will be kept under review as a matter of course, and the various commissioners may comment on them in their respective annual reports, should they wish to do so.

The intention is for the new commissioner to fill an existing gap, not to take on functions already performed elsewhere. There is no reason to suppose that existing bodies would seek to widen their roles and expand into the territory occupied by others. Therefore, the amendment perhaps goes wider than required. However, I can give the Committee an assurance that the Government will be alert to any emerging confusion about respective roles and to the need to ensure that appropriate steps are taken to address such an eventuality. At this stage, however, there is no reason to suggest that there will be any problems. We will certainly focus on this point as part of the process of implementing the provisions in this part of the Bill.

I share the desire to get the relationship between the surveillance camera commissioner and the Information Commissioner off on the right footing. Indications we have received in relation to evidence to the Committee certainly do not suggest that there will be any problems. I hope that in light of my comments and the debate I hope that the hon. Member for Gedling will be minded to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

Good afternoon to you, Mr Caton, and to everyone on the Committee. I will withdraw the amendment. I think what the Minister said was helpful, although he was not quite right to say—I may have misunderstood him—that the witnesses did not express considerable concern about the possible duplication or confusion of roles between the surveillance camera commissioner and the Information Commissioner.

It is worth reminding the Committee, for example, of what the Law Society said:

“The potential for conflict with the Information Commissioner’s existing CCTV code of practice and between the Information Commissioner and the Surveillance Camera Commissioner have been pointed out by commentators and is of concern to the Society. More importantly, the Information Commissioner has expressed concern that ‘it may be difficult to reconcile different legislative approaches within one document, especially where there are differences in territorial scope, sectors covered, compliance obligations and enforcement mechanisms’.”

That was the reason for the Opposition amendments; we are trying to push the Minister to give some clarification about how he sees things developing.

The Minister will correct me if I am wrong, but it was interesting that he thought that one code might be preferable, and that will perhaps have to be determined in the future. I think that one code would be preferable. I take the point that the Information Commissioner’s code of practice is not a legally enforceable document and that the commissioner’s legal powers come from the Data Protection Act 1998. I understand that, but people will still be confused about whether they are seeking to comply with legal obligations under the Act or simply a voluntary code monitored by the surveillance camera commissioner.

As I say, therefore, possible areas of confusion remain, notwithstanding the Minister’s comments. However, he has said that he will keep the matter under review and reflect on the comments that have been made. That will help not only the Committee, but those who follow our proceedings. We all want the Bill to be improved as it goes through the House and to work. Some further reflection and thought on how to proceed are necessary. However, on that basis, I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I have a couple of questions about the commissioner. Clause 34(1) says that the Secretary of State “must appoint a person”. The impact assessment said that the cost would be about £250,000. What does the Minister expect the surveillance camera commissioner’s salary to be, how many staff does he expect the commissioner to have and how much will they be paid? Where will the office be based, and how much does he expect the office costs will be for the post?

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have sought to mitigate costs relating to the surveillance camera commissioner by telegraphing clearly that we expect the role to be fulfilled by the forensics commissioner. That is the current intention. We examined the matter carefully to decide the most suitable way forward.

The hon. Member for Gedling is right that the explanatory notes and the impact assessment indicate that the cost of the role of surveillance camera commissioner is expected to be about £250,000 per annum. That is intended to cover all the costs of the office: in other words, staffing and any other related costs. I am certainly happy to consider whether we can provide more detail in the form of a further breakdown, if one is available, of how the £250,000 will be made available. As I said, the £250,000 is the current cost of the interim CCTV regulator under existing arrangements. My understanding is that we are not seeking to extend that and that it will be captured within the existing remit. That is effectively where the number came from and how it has been calculated. If I have any further detail, I would be pleased to provide the hon. Gentleman with more information, but as I understand it, that is the cost of the existing, interim CCTV regulator, and it is reflected in the cost of the new post of surveillance camera commissioner. In other words, we are putting the interim into the form contemplated for the purposes of the Bill.

Clause 35

Vernon Coaker (Labour, Gedling)

I beg to move amendment 84, in clause 35, page 23, line 42, after ‘commissioner’, insert

‘to include an assessment of whether the code of practice should be extended to apply to all operators of surveillance camera systems’.

This is a simple amendment dealing with the commissioner’s reports. It is laid out in the clause what the commissioner must produce in their reports. The amendment seeks to clarify the Government’s thoughts about what role the commissioner will have with respect to any extension of the code of practice on surveillance cameras. As we heard this morning, the Bill deals only with police and local authority cameras, which excludes about 1.6 million or 1.7 million cameras. At some point, no doubt, the Government will assess whether the code of practice should be extended to apply to other cameras.

I am interested to know what role the Minister sees for the surveillance camera commissioner in that. Obviously, the Secretary of State will have an order-making power, but the surveillance camera commissioner is clearly somebody we would want involved. Will that be done through the report? Clearly, there will be consultation and liaison with the surveillance camera commissioner; I cannot imagine that happening without it. What are the Minister’s thoughts on the role of the commissioner in extending his or her remit with respect to the surveillance camera code? As I say, it is a simple amendment that seeks to obtain some clarification from the Minister about his intention with respect to the code.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to the hon. Gentleman for the probing nature of his amendment, because as it is drafted the amendment probably seeks to have a different effect in seeking to make all operators of such systems come within the ambit of the code. I do not think that that was his intention. I think that his intention was more to test out the role of the commissioner.

Clearly the annual report that the surveillance camera commissioner provides will be important and the commissioner will determine the content of the report. The Bill provides that the commissioner may give advice about the code, including changes to it, and we will certainly value the commissioner’s views about how the code may be developed. The commissioner’s reports will be one of the principal means by which Ministers and other interested parties can assess the impact of the code of practice. They will enable the Government to keep the code under review and to determine whether changes to it—wider changes such as adding organisations that are required to have regard to the code, or changes to other legislation that might be needed—can be properly informed by the report and the analysis of the camera commissioner in the operation of the code, including how it is working and how its reach and ambit are being applied.

The report will be an instructive and formal means for the commissioner to telegraph clear recommendations about the code, its application and whether it is achieving its intended objectives. Clearly Ministers will give careful consideration to any recommendations that might be made. Indeed, that is why we have not been prescriptive and said that the Bill will contain this or that. It is very much for the commissioner to determine what should be incorporated within the code.

The answer to the hon. Gentleman’s question about the code is that, yes, it will help to inform consideration of any extension of the powers in the Bill and of the order-making powers specifically, and more generally it will help to inform consideration of regulation in this field.

It is important that the surveillance commissioner has the formal route to do that, although as the hon. Gentleman rightly pointed out there is likely to be ongoing dialogue and engagement, as I have already seen for myself, in the form of discussions with the interim CCTV regulator and other commissioners in this field. I anticipate that that will continue, albeit that the reports will be a formal means of putting issues on the record that will be useful to inform debates in this House and elsewhere about the development of policy.

Vernon Coaker (Labour, Gedling)

After those comments from the Minister, I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I will speak briefly on this clause, as I want to speak at greater length on one or two of the clauses that we will debate later. Regarding these reports from the commissioner, which will be laid before Parliament, does the Minister think that it would be helpful if they were debated by Parliament? Given the importance of the measures in the Bill, does he think that it would be helpful for these particular reports to be debated by Parliament rather than just being laid before Parliament? I do not want or expect a provision for that to be in the Bill. I just wonder whether the Minister has a view about whether it would be helpful if the reports were debated by Parliament.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Certainly, I very much welcome debates about the issue of privacy and how we can safeguard privacy further. Obviously, as a member of the Executive I would not wish to prescribe to Parliament how it should conduct its affairs and I am sure that the hon. Gentleman would understand the reasons for that and why Parliament rightly asserts its own views in relation to a number of the issues, with Back-Bench debates and everything like that. However, he raises a fair point about debates and discussions.

Vernon Coaker (Labour, Gedling)

Has the Minister never supported a guillotine?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am sure that the hon. Gentleman has done so. [ Laughter. ] I will not tempt either of us to go down that route. It is important that we continue to have debate and discussion in this House and elsewhere on the application of codes of practice and on privacy issues more generally. It is important that we continue to have debate and discussion in this House and elsewhere on the application of codes of practice and on privacy issues more generally. It will be for Parliament, however, to decide what it considers appropriate in terms of formal debate. I am sure that members of the Committee and other hon. Members will determine what they would like to do in response to the reports that will be provided to Parliament by the surveillance camera commissioner. It is important for Parliament to be properly informed in that way.

Clause 37

Vernon Coaker (Labour, Gedling)

We move to an important part of the Bill, which deserves careful consideration by the Committee. We will reserve judgment until after Report, because we want to hear how the Government see the mechanism working before we consider how we might best respond to it. Even if the measures are the right thing to do, it would be interesting, as I have said before, to know what evidence the Government are using to take the business forward, so that we have judicial approval for obtaining and disclosing communications data.

I cannot remember whether you were in the Chair, Mr Caton, or whether it was Mr Streeter, during one of the most entertaining witness sessions that I have been privileged to attend. I do not know whether my hon. Friends agree, but I thought that Sir Paul Kennedy was an outstanding witness. He was not afraid to stand up for and say what he thought, or to take on the massed ranks of the state when they tried to encourage him to believe that he had got it completely wrong. We shall come on to discuss the interception of communications commissioner; I hope that all hon. Members have read his submission, because it is extremely interesting. As we will see when we debate the next clause, he is not the only commissioner who has some interesting comments to make.

I was interested to read the Government’s impact assessment relating to the Regulation of Investigatory Powers Act 2000 and local authorities, which was signed off by the Minister. Frankly, I was astounded by the first couple of sentences. The impact assessment lays out why the Government are changing the legislation, why they believe that the current RIPA arrangements are wrong and the system needs judicial approval, and why improvements must be made in the system. In case people have not had the opportunity to see the assessment for themselves, in answer to the questions,

“What is the problem under consideration? Why is government intervention necessary?”,

it states:

“The coalition is committed to stop local authority use of RIPA…unless it is for serious crime and approved by a magistrate.”

This is the important sentence:

“This stems from perceptions that local authorities have misused RIPA powers particularly in relation to low level issues.”

Where on earth have any Government started to legislate in such a serious area on the basis of perception? It is astonishing that the Government believe that because there is a perception that there is a problem, they must legislate. There is no evidence of a problem, but the assessment states that there is a perception of one, so the Government have chosen to legislate.

John Robertson (Labour, Glasgow North West)

Does my hon. Friend not find this somewhat confusing? When we talked about CCTV this morning, Government Members were totally against perception. Now they are talking about writing the Bill on perception.

Vernon Coaker (Labour, Gedling)

My hon. Friend makes the point well. We are talking about legislating on the basis of perception. It is in the second sentence of the impact assessment. The Minister is a capable and good Minister, and I suspect that if he read that word again, he would change it. Has the hon. Member for Northampton North ever said to a judge in court, “Look, your Honour, the perception is this.” He may have said it, but the judge would have said, “This court makes its judgments on the basis of evidence, my learned friend.” Yet here we are, discussing one of the most serious pieces of legislation in one of the most serious areas of work for the local authorities, and we are legislating on the basis of perception. Frankly, I find that astonishing. I am labouring the point, because I was so incredulous when I read those words a few days ago.

Then we come to the interception of communications commissioner. The Government have just totally ignored what he said. He may be wrong, but it is quite incredible to see the interception of communications commissioner completely and utterly drive a coach and horses through the Government’s proposals. I do not know when his term comes up. Hopefully, he will be reappointed on the basis that he is an honest and independent judge who is not afraid to tell the Government what he thinks even if it is not what the Government want to hear.

It is worth going through some of the points that the commissioner makes. Again, with respect to communications data and local authorities, the Government are legislating because the perception is that these powers are misused. We are talking about communications data now, but in the next clause we come to directed surveillance. The interception of communications commissioner says:

“I am aware that some sections of the media continue to be very critical of local authorities and there are allegations that they often use the powers which are conferred upon them under RIPA inappropriately.”

Just listen to the language.

“However, I can categorically state that no evidence has emerged from our inspections that have taken place between 2005 and 2010, which indicates that communications data is being used to investigate offences of a trivial nature, such as dog fouling or littering.”

We have the perception and then we have the interception of communications commissioner saying that there is no evidence for a change. We may have read the media stories, but we should legislate on the basis of evidence.

The commissioner goes on to talk about judicial approval. There is a case for introducing judicial approval. What I am concerned about is that it is being done on the basis of a perception rather than on the basis of evidence or anything else. The commissioner says that he believes that introducing judicial approvals will result in a reduction in the number of requests that local authorities make. Does the Minister agree? Does he think that the interception of communications commissioner is right or wrong? Does he think that the provision will undermine local authorities? We talk about confidence. Local authorities must continue to have the confidence to use this tool, because many of them find it useful in tackling things that bother local people, local communities and local groups. No one wants to see the powers abused or inappropriately applied for. On the other hand, our constituents benefit from the use of such tools as the interception of communications data. We have to be careful that in legislating to improve the process, we do not cause local authorities to simply lose confidence and not use the powers even when they believe them to be appropriate.

The interception of communications commissioner believes that judicial approval is totally unnecessary. I do not agree with him on that; I am not just agreeing with everything he says, but will the Minister explain why a judicial authority could not make a wrong decision? Magistrates are not infallible. We are talking about the small number of cases when RIPA has been misused under the existing authorisation process, and although there is another safeguard, it is perfectly possible that under the process, a magistrate may give an authorisation to an authority when it is not appropriate to do so.

I again remind the Committee that the Bill is a public reading stage pilot, so we need to be interested in what the public are telling us. The Government rejected concerns raised by members of the public who responded during the public reading stage about the new process being bureaucratic. Will the Minister confirm that in addition the process does not have to be approved in court and that it may be an out of court decision? The authorisation process that I thought we were agreeing to is that, because it is so serious, an interception of communications data applied for by the local authority must be signed off not only by a senior official of the authority, but by a magistrate in some sort of formal judicial process in the court. However, it seems that it may be done by a magistrate outside the court. If that is wrong, the Minister’s officials have got it wrong when replying to the public reading stage, because the public reading stage document states that the process may be an out of court disposal. How would that work? How would it happen? Who would someone go to? I find it difficult to understand how that would happen. Is there a risk that the application would just be rubber-stamped? How many magistrates does the Minister envisage would be involved? How would they be trained? Would there be special magistrates who made the authorisation? Could we go to any magistrate, or would there be a few magistrates in every area? Would there be an identified RIPA-trained, skilled and authorised magistrate, or could it be just anyone? If the process can take place out of court, would the applicant go to a magistrate’s house, or send them a letter or an e-mail? How would one get an authorisation?

This is the point of Committees. It is all very well for us to say that judicial approval is wonderful; as I have said to the Minister, in many respects someone could say that if there was judicial authority to do something, some of the problems that have emerged might not have happened, but where is the evidence for that? What will happen? How will the process work? What will go on? What does judicial approval mean? It may mean something different in Northern Ireland and in Scotland. What is the process that will be gone through?

The interception of communications commissioner also points out that it is quite possible that local authorities would use other laws available to them to achieve the same things, such as the Social Security and Fraud Act 2001 or the Enterprise Act 2002. Does the Minister agree that that is a risk? We have no particular evidence for that, but what monitoring would take place to see if there was a problem? We must ensure that local authorities do not circumvent the measure and use other powers that are available to them, even though they are not RIPA powers.

Does the Minister think that judicial approval is as important for communications—a point made by the interception of communications commissioner—and that communications data should be treated in the same way as directed surveillance under clause 38? Could they be treated differently? Are communications data not as serious, or does he see both elements as serious as each other, and therefore it would be inappropriate for there to be a different regime for local authorities for communications data and directed surveillance?

In his final sentence, the interception of communications commissioner states:

“I regard the proposed measures in the Bill as wholly unnecessary and unjustified.”

Whatever the rights and wrongs of what he said, and we can debate it, I have not seen anything so strongly worded from a commissioner about a piece of legislation proposed by the Government.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I agree with the hon. Gentleman on one point; the interception of communications commissioner’s evidence was certainly entertaining. Does the hon. Gentleman not acknowledge, however, that the commissioner accepted that many of the concerns around RIPA, such as dog fouling and using RIPA powers to identify whether someone lived where they claimed so that they could access a school place, were not within his area of responsibility? Also, could the hon. Gentleman explain why his right hon. Friend, formerly at the Home Office, referred to “dustbin Stasi” in relation to the use of RIPA powers? Did she not believe that there was a problem too?

Vernon Coaker (Labour, Gedling)

In answer to the first point about the use of powers that the interception of communications commissioner does not have responsibility for, I refer the hon. Gentleman to the next clause. If we go through what the chief surveillance commissioner says, he is as scathing of the Government’s proposals as the interception of communications commissioner is. Of course the interception of communications commissioner does not have responsibility for some of the things that the hon. Gentleman infers are matters of concern, but the commissioner who does have responsibility for such matters has said that he does not believe there is a problem in that respect.

As for the comments of the former Home Secretary, I believe she was referring to an incident when she felt that the powers had been misused. I did not say that there had never been an example of the powers being misused. As I said this morning in relation to CCTV, I am sure that we could find an example of a power under clauses 37 or 38 being misused. But where is the evidence that because of one or two isolated incidents, a whole swathe of legislation needs to be swept away and changed? All I am saying is that the Government, in the second sentence of the impact assessment, talk about perception. They do not say that there is evidence of significant abuse of RIPA powers so an additional safeguard needs to be placed in primary legislation to amend RIPA to ensure that it cannot be abused in the way that significant numbers of local authorities have done.

These matters are serious. The judicial process that needs to be gone through—a local authority applying for interception of communications data, a senior official agreeing it and then going to the magistrate—is completely unclear. The provisions are laid out in the Bill as though it is simply a case of going to a magistrate and the magistrate deals with the application. What I want from the Minister, and what the Committee deserves, is clarity about how the process will work and what an out of court disposal means. Lastly, why did the Government say in the impact assessment that they were changing the law because of a perception rather than on the basis of evidence?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman has taken an interesting approach given that the shadow Home Secretary said:

“I also agree that in some cases the implementation of the Regulation of Investigatory Powers Act 2000 has gone beyond Parliament’s original intention and that further safeguards are needed.”—[Official Report, 1 March 2011; Vol. 524, c. 217.]

Her intent was clear: the issues were important and further protections were required. The hon. Gentleman’s comments at the outset—that they would leave judgment on the matter until Report—seem to be telegraphing a movement away from that statement of clarity from the shadow Home Secretary on the provisions in RIPA. However, the hon. Gentleman made a number of relevant points and questions and it is fair that I address them.

The point at issue, on which the hon. Gentleman is most concerned, is the underlying nature of what we seek to achieve. Ultimately, that comes down to public trust and confidence in how the system is being used. The hon. Gentleman was forthright in debates this morning about ensuring that the public were involved and that there was a sense of public engagement. It is important that the public remain confident. To return to the oft-quoted debate that he and I had two years ago, his view was that ensuring that public confidence was maintained was a key part of what was required in relation to RIPA. He said:

“The key in the RIPA framework is the test of necessity and proportionality.”—[Official Report, 19 March 2009; Vol. 489, c. 338WH.]

We seek to have an external safeguard to ensure that that focus on necessity and proportionality is maintained, and that the provisions in RIPA that he rightly identifies as important to local authorities—we will come to the separation of communications data and the other techniques that are available under RIPA—retain the continuing trust and confidence of the public and the confidence of local authorities in how they seek to utilise the powers that remain available to them.

The judicial approval process will apply to local authorities carrying out each of the relevant functions under RIPA. The hon. Gentleman identified concerns that the previous Government had about the use of RIPA for directed surveillance and other techniques. He will be aware of the comments of the then Home Secretary, Jacqui Smith, and the right hon. Member for Delyn (Mr Hanson). He stated:

“Nevertheless, a small number of local authorities have authorised techniques under RIPA in circumstances when most of us would say it was not necessary or proportionate for them to do so.”—[Official Report, 4 November 2009; Vol. 498, c. 43WS.]

It appears that there is recognition that there is an issue. It appears, from what the hon. Gentleman’s colleagues and various others have said, that there is recognition that further checks and balances are required in order to ensure continuing trust and confidence in the fair, appropriate and proportionate use of all of the techniques under RIPA. That is precisely what the measures in clause 37, and those that we will come to in clause 38, are intended to safeguard and provide, by ending local authority self-authorisation of RIPA techniques and adding a judicial approval mechanism to the local authority use of communications data and the other techniques that are available under the Act.

It is important to note that the proposals were carefully considered and were not introduced in isolation. They form part of the review of the broader counter-terrorism and security powers undertaken for the Government by Lord Macdonald of River Glaven, who gave evidence to the Committee at the outset. I remind hon. Members of what he said in his report:

“The review’s conclusion that a magistrate’s approval should be required before a local authority can conduct any activity under RIPA is well evidenced. Such a reform would be a proportionate response to public concern and it would provide a necessary degree of reassurance that local authorities’ use of surveillance is at appropriate levels and properly policed.”

That is at the heart of clause 37 and of the points at issue.

The hon. Member for Gedling asked a number of fair questions about how the proposals would work in practice and what their likely impact would be. He highlighted the issue of whether local authorities might wish to use other legislation to skirt around or circumvent the proposals and protections being built into the Regulation and Investigatory Powers Act by virtue of the amendments. Work is being undertaken to streamline access to communications data. As the recommendations in our recent counter-terrorism review concluded, Departments, agencies, regulatory authorities and community safety partnerships should be consulted, to establish the range of non-RIPA legislative frameworks by which communications data can, in principle, be acquired, and for what purposes, and such a consultation is currently taking place. The legal frameworks should then be streamlined to ensure that as far as possible RIPA is the only mechanism by which communications data can be acquired. Any required legislative amendments will be introduced shortly, following the conclusion of the analysis and consultation.

The hon. Gentleman’s point is fair and valid, in that there is concern that a safeguard is built into one regime but other regimes might apply. In ensuring that there is clarity and certainty and, ultimately, an assurance for the public about how the techniques are utilised, it is right and appropriate to view the context of the proposals against other potential frameworks.

The hon. Gentleman asked how we envisage the magistrates approval mechanism working. We envisage that a representative of the local authority will attend the magistrates court, when it is not in session, for the magistrate to assess the authorisation. We are also assessing the feasibility of using electronic means for the magistrate’s approval on the authorisation of communications data alone, and are carefully considering that in conjunction with the Ministry of Justice and HM Courts Service. The shadow Home Secretary was keen to underline, and the hon. Gentleman was right to underline, that we do not want the mechanism to be overly bureaucratic but rather to provide an independent check and balance such that the powers can be utilised in a way that adds to the steps, authorisations and consideration that a local authority already undertakes in introducing one of these proposals.

On the question of which magistrates will govern the process, there are two types of magistrate—stipendiary magistrates or district judges, and lay magistrates. There would be insufficient numbers and coverage if we were to exclude lay magistrates from the authorisation process, and with the Ministry of Justice we are carefully considering providing the necessary assurance by ensuring that comprehensive training in the process is provided to all magistrates. Having independent scrutiny of the authorisation when it happens will be an additional safeguard. We can look to the existing commissioners and the work that they undertake, but that is very much after the event. It is looking back at what has happened. It is looking back on patterns and authorisations that have already taken place. We intend to provide a separate mechanism to ensure a check and balance as well as an independent safeguard at the time an application is being considered.

Vernon Coaker (Labour, Gedling)

Will the Minister explain how the decisions of the magistrates will be monitored? Will the commissioners have responsibility for that?

James Brokenshire (Conservative, Old Bexley and Sidcup)

No, the commissioners will not have responsibility for the work of the magistrates. As the hon. Gentleman will understand, the judiciary is independent of the Government and there is an important point to make about ensuring that magistrates are kept separate and are very much seen in that judicial way, as any other judge would be. It would not be appropriate to have oversight by the commissioners in that sense of the work of the magistrates. They are fulfilling a different role and a different function.

In essence, the commissioners will review the steps that the local authorities take to get to the point that the matter goes to court. The commissioners will still continue to fulfil an important role to ensure that the steps, procedures, processes and utilisation of the powers under RIPA by local authorities are used appropriately. The reports and the role of the commissioners will still absolutely stand, and they will be able to make recommendations in the same way as they do at present in respect of all the steps prior to going to court. We are just providing an additional safeguard with the magistrates being able to approve or disapprove the applications coming before them, which is the relevant point under consideration in clauses 37 and 38. It is a role distinct from that of the commissioners, but that they have continuing oversight of the adoption of the regime by local authorities will remain an essential part of the work engaged in such a way.

It is worth reiterating that many in Parliament and outside it agree that a rebalancing at the local level needs to be effected to reflect more accurately what most people consider to be a sensible, measured and proportionate use of potentially invasive techniques. The introduction of a judicial authorisation process would help to achieve that important outcome and, accordingly, I commend the clause.

Tom Watson (Labour, West Bromwich East)

I thank the Minister for his comprehensive answer to my colleague’s questions. The clause represents a substantial change to RIPA, action that the Minister has obviously taken on advice. He must be aware of the statements from the Director of Public Prosecutions and the assistant commissioner of the Metropolitan police that RIPA requires clarifying in the area of the illegal interception of voice mail messages. Has he received advice to amend the Bill to change that series of sections under RIPA? If not, will he consider doing so at a later stage?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am certainly not aware of advice that has come forward in relation to such provisions. As the hon. Gentleman will well appreciate, there is a continuing police investigation into several issues, so I shall reserve my comments until the outcome of those investigations. I am sure that he will return to the matter later in our proceedings. I appreciate that it is sensitive.

Tom Watson (Labour, West Bromwich East)

The DPP and the Metropolitan police are on record as saying that they require clarity, as, I think, is the Information Commissioner. That matter is not related to the criminal investigation. They have stated publicly that the Act can do with clarification. It strikes me that the clause might be the place where the Government can make such clarification. I am sure that it would receive universal acclaim, even perhaps from national newspapers.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am certainly not aware of any formal request having been made to clarify RIPA, but should any such request come forward, we will obviously consider it in the usual way.

Clause 38

Vernon Coaker (Labour, Gedling)

I beg to move amendment 103, in clause 38, page 27, line 32, at end insert—

‘(c) the seriousness threshold has been met, defined as offences that carry a maximum custodial sentence of at least six months and subject to limited exemptions relating to the under-age sale of alcohol and tobacco.’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss new clause 12—Independent inquiry into use of investigating powers under RIPA—

‘(1) The Secretary of State must establish an independent inquiry into the use of investigatory powers under the Regulation of Investigatory Powers Act 2000.

(2) The inquiry will examine in particular the use of directed surveillance and possible limits to its use.

(3) The inquiry will examine possible exemptions to the Act relating to the under-age sale of alcohol and tobacco and anti-social behaviour.

(4) Recommendations from that enquiry shall be reported to Parliament.’.

Vernon Coaker (Labour, Gedling)

This is a significant clause. We have moved on from communications data to directed surveillance. Amendment 103 deals with the seriousness threshold for the authorisation of applications for directed surveillance by a judicial authority. New clause 12 also mentions the seriousness threshold and one or two exemptions.

The Minister’s answer on how he envisaged the judicial process working started to answer some of the questions that people will be asking—that is one reason for having a Committee—and, in that sense, what he said was helpful, because it also applies to how the judicial approval system will work in the case before us. The Minister was very careful in the words that he used when he said that the Government are considering how these measures could be used and whether they would be appropriate, which is exactly the right thing to say, but I would be interested to see how electronic authorisation would work.

In new clause 12, we attempt to get at the issue that my hon. Friend the Member for West Bromwich East was talking about. The clause amends the relevant parts of RIPA which deal with directed surveillance and communication data in relation to local authorities. Some of the submissions that we have received and, as my hon. Friend said, some of the comments that other people have made indicate that there is a need for a broader review of RIPA and of how this whole regulatory framework works.

That is why we tabled new clause 12. Essentially, we need to know from the Minister why the Government seem to have ruled that review out. They seem to have said that RIPA is working very well, and it might be—I am not saying that it is or it is not. However, the purpose of the new clause is to get at why they feel that there is no need for a broader review of RIPA. Why do they feel that it works well as it stands with respect to the vast array of public authorities that can use the directed surveillance powers, but that there is a real problem with local authorities, with the result that they are going to amend the legislation in that regard?

We have no evidence that there is a real problem. There is evidence that a limited number of authorities misuse the powers and cause a problem, but there is no evidence of widespread abuse. As I told the Minister, I agree that there is a need to look at RIPA because of the inappropriate use made of it by one or two authorities and that there is a case to be made for judicial approval. If we are going to have additional approval, that is probably a better system than some of the others that were suggested, such as one involving the commissioners. I agree with the arguments in the impact assessment that if we are to have an additional safeguard, it is probably better to have a judicial safeguard than one provided via the commissioners. However, the Government have provided limited evidence to explain why they are doing certain things, and that has been a recurring theme throughout the consideration of the Bill. An independent inquiry would make a significant difference.

On the use of directed surveillance, the memorandum from the chief surveillance commissioner points out:

“In relation to local authorities, the general picture over recent years has been of improving standards in and diminishing use of directed surveillance”.

The use of communications data has increased, but the use of directed surveillance, with which clause 38 and the amendment deal, has decreased.

The surveillance commissioner pointed out that the number of authorisations decreased from 12,000 in 2006-07 to about 8,000 in 2009-10. Fewer than half of those were authorised by local authorities, yet the Government’s proposals in the Bill and their amendments to the RIPA legislation deal specifically with local authorities. The surveillance commissioner said that much of the criticism of local authorities has been wrong and ill-informed. Will the Minister comment on the surveillance commissioner’s remarks? He said:

“I know of no occasion when covert surveillance has been improperly used in relation to dog fouling.”

Either the commissioner is wrong, or sometimes the way that is used is wrong.

The commissioner went on to say that

“isolated examples of incompetence rarely provide a sound basis for changing procedural structures.”

He asks—this is why I think an independent inquiry is needed—why local authorities should be singled out. Do the same concerns not apply to RIPA authorisations of directed surveillance for other public authorities? Abuses of that process of which we are unaware might well be taking place. We do not know, although we do know that the surveillance commissioner said that it is

“not obvious why local authorities should be”

singled out.

That is important. We can see the danger of legislating on the basis of perception. The surveillance commissioner says:

“I know of one Government Department whose practices currently cause me more concern than any local authority”,

yet the Bill is completely silent about that. It does not say a word about it. That is why my hon. Friend the Member for West Bromwich East asked whether a broader look at what is going on was not needed. Why does the chief surveillance commissioner say that? The Government are legislating with respect to local authorities, and we have accepted that that may well be necessary, but other abuses are causing the person who is responsible for assessing, independently of Government, whether those powers are being used properly to say that other public authorities and a Government Department cause him more concern. However, the Government do and say nothing about it. We need to understand why the Bill deals only with local authorities. The inquiry that I propose would consider the matter more broadly.

An independent inquiry into the use of the regulatory powers would consider the use of directed surveillance and possible limits on it. The Minister and the Government have correctly said that directed surveillance needs to have a serious crime threshold, identifying six months. How did we arrive at six months as the definition of a serious crime threshold? The Police Act 1997 defines a serious crime as one carrying a three-year sentence or more. A crime is either serious or it is not. How did we arrive at six months as a definition? Why not three months, nine months or a year? The Minister is clearly worried about some of the provisions himself. The Bill as it stands will provide an exemption for alcohol, and particularly under-age sales of alcohol and tobacco, which is sensible in itself. I would be interested to hear the Minister’s justification for six months, and why that is considered to be the important threshold for the judicial authority being given to the local authority by the magistrate.

Michael Ellis (Conservative, Northampton North)

The maximum penalty that magistrates may impose for an offence is six months, and that may be part of the reasoning for setting that as the limit.

Vernon Coaker (Labour, Gedling)

That may well be the case. The point is whether that is appropriate. Why was it not three months? Why have the Government gone for the maximum of six months for the magistrate? Is it six months because, as the hon. Gentleman says, six months is the maximum that a magistrate may give in such circumstances, so they must have six months although we think it should be more? The justification may be as simple as that, but why is it not less, and is there no exemption when the magistrate thinks that it is not appropriate for them to decide and that the matter should be looked at by others?

I turn to the surveillance commissioner—this is why this Committee process is important. Is it the case that, as he says, although 30,000 magistrates will be trained, there has been no approach to the Judicial Studies Board to start to prepare for the increased responsibility that will be placed on them? If there was an inquiry, we could look at the impact on magistrates of the judicial approval requirement.

It is clear that the clause makes significant changes to RIPA concerning the authorisation process. We still have no evidence of communications data, apart from one or two examples. We now go to directed surveillance, and again there are only one or two examples. The Government have failed to say why, because there are one or two isolated examples concerning local authorities, it is necessary to take action. The independent commissioner said that there are one or two examples in other areas, but the Government believe that it is inappropriate to take action with respect to them. That is laid out in the commissioner’s report, and is why an independent inquiry, as new clause 12 suggests, would be appropriate. That goes back to the point made by my hon. Friend the Member for West Bromwich East that many people are saying that a broader review is needed.

The Government have put the measure in the Protection of Freedoms Bill to say, “Look at us. We are taking action to protect people’s freedom.” The judicial approval mechanism may be a way of doing that, but all sorts of other things need to be raised, which is why new clause 12 is important.

Tom Watson (Labour, West Bromwich East)

In trying to build my earlier case to the Minister, I strongly endorse new clause 12. If RIPA is seen in the context of the past 11 years, it was incredibly controversial. Not many members of the Committee were around back in 2000, but there were demonstrations, and there were probably speeches at the Liberal Democrat conference condemning the illiberal nature of the then Blair Administration. It is not unreasonable that, 11 years into the legislation, which is receiving almost meccano-like surgery in the Bill, we take a slightly closer look at it and try to decide where it has worked and where it has not. A review would work very well, not least because the aspect of most interest is where the Government are choosing not to amend it.

I mentioned to the Minister earlier that the Director of Public Prosecutions and the assistant commissioner of the Metropolitan police, John Yates, had said that there is a lack of clarity in the parts of the Bill that deal with phone hacking. I said I was sure that the Information Commissioner had said something on this issue. Only this morning in this House, the Information Commissioner told the Home Affairs Committee that RIPA was very unclear on the potential misuse of data, and on blagging and hacking. He went on to say that the main issue is that we have a law and a regime around hacking, blagging and interception that is very unclear and very uneven.

It strikes me that a review would allow the Minister to read the statements of the people who work for the Government. I have slightly got him on the hop now, because I have an iPhone 4 and he has a file full of notes.

Martin Caton (Labour, Gower)

Order. The hon. Gentleman should not be using a mobile telephone in Committee.

Tom Watson (Labour, West Bromwich East)

My sincere apologies, Mr Chairman. What a ridiculous anachronism that is. However, I will respect your ruling straight away.

I say to the Minister that if the Information Commissioner himself is saying that this law is flawed and needs to be amended, either there is a very sensible proposal from my hon. Friend the Member for Gedling to have a root and branch review, which will not do any harm, or the Minister himself could help the members of this Committee who take the Bill seriously by perhaps going away and considering whether he can at least help some of these commissioners who work for the Government.

I understand that the Information Commissioner also said that the Ministry of Justice is considering introducing legislation to fine people £5,000 for blagging. Presumably that would be on the basis of an amendment to RIPA, which might form a Government amendment later in the stages of this Bill. These things happen in the process of debating Bills. There is a lack of clarity in this particular area. I am not trying to put the Minister on his mettle now, but I would at least like to get out of him an agreement to go away and look at what everyone has said about this material. If he thinks that it is worthy of an amendment, he can come back to us with a proposal.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously a number of points arise from this debate about clause 38. One of the first points that the hon. Member for Gedling made was on the necessity, and the use of the examples relating to dog fouling and so on. I know that the previous Home Secretary, Jacqui Smith, highlighted those examples as some of the abuses of the system. Indeed, in evidence to a Lords Committee the hon. Gentleman himself highlighted a potential concern in relation to the misuse of RIPA.

However, I can refer the hon. Gentleman to the case of Poole council, which I am sure he will be aware of. The council used directed surveillance powers to investigate whether a particular individual lived within the catchment area of a local school. In that case, the investigatory powers tribunal concluded that the surveillance was not proportionate and could not have been believed to be proportionate. The tribunal further concluded that the council had acted in a way that was incompatible with the complainant’s article 8 rights.

That was a pretty damning verdict and when the public continue to hear about the use of surveillance in investigations of littering or other minor offences, the issue of public confidence becomes even more important. Local authorities are there to serve their communities. If they are to do that effectively, they must maintain the trust and confidence of the people that they serve. That was very much the emphasis, understanding and recognition of the Local Government Association in some of the comments that they have made. They recognised the need to take people with them in relation to the use of cameras, so that confidence in the system is maintained through this mechanism, by virtue of the oversight that we are seeking to provide with the additional interposition of the magistrate’s approval.

When Lord Macdonald gave evidence to the Committee, he said that there had been no pattern of systematic abuse of RIPA powers by the local authorities. But it only takes the occasional high-profile example of misuse of those powers to undermine all the many other examples of good practice. It is important to underline that in that way.

I welcome these amendments on one level, to the extent that they recognise that there has been public concern about local authority use of RIPA techniques, particularly directed surveillance. The Government are committed to limiting local authority use of covert techniques under RIPA to serious crime, and to providing that the technique can only be used when approved by a magistrate. We want to stop local authorities being able to use these invasive techniques in trivial cases such as low-level littering, dog fouling or investigation of whether a family lives within a school catchment area. As such, we will be introducing a secondary crime threshold under secondary legislation along the lines of that proposed by amendment 103. That will limit local authority use of directed surveillance to investigations of offences that attract a maximum custodial sentence of six months or more, with the exception of offences related to under-age sales of alcohol and tobacco.

Let me address the specific point on how the six-month period was arrived at. The hon. Member for Gedling pointed to the Police Act 1997 and asked why the definition of a sentence of three years imprisonment within that was not taken, using the parallel example there. We could have set the bar at the three-year level, rather than at the six-month level that we have in the Bill, but because of the nature of the offences and issues that local authorities face, if a three-year rule was imposed, it would rule out local authority use of RIPA techniques for any of their enforcement activities. Starting from that threshold would rule everything out. I do not think that any member of the Committee would judge that to be the appropriate way forward.

In essence, what we have sought to do is take the alternative approach. If we want to ensure that there is not an abuse of power in using these significant invasive techniques for trivial matters—to approach it looking at it from that end of the spectrum—and given that local authorities have this responsibility for enforcing more than 100 separate Acts of Parliament, we looked at whether it should be a six-month or one-year threshold. On balance, we felt that six months was the right way to approach it in terms of dealing with the trivial. In other words, less than six months would be regarded as trivial. Rather than looking at it in the other direction, we considered the setting of the threshold in the context of the current pieces of legislation that are available to local authorities.

We believe that that is the appropriate way to address it, albeit that arguments can be made on whether it should have been one year instead of six months. On careful reflection, we considered that the six-month threshold was the right one, with the clarification of the point on under-age sales of alcohol and tobacco and so on. The local authorities will continue to need to use some of the techniques under RIPA to crack down on what communities regard as serious, even though they may fall below the six-month threshold.

A general point is being made on the need for a wider review. When I originally looked at new clause 12, which the hon. Member for Gedling tabled, I perhaps interpreted it in a narrow sense. I thought that it was intended to deal with the need to look at exemptions around tobacco and alcohol. In doing that, I would have said that we should be acting upon this now and we can achieve this through an order-making power. I note, however, that his proposals seek a broad application, which in many ways mirrors the comments of the hon. Member for West Bromwich East.

I am grateful to the hon. Member for West Bromwich East for highlighting the comments that the Information Commissioner made this morning, which the hon. Gentleman accessed via the BlackBerry. I would not have been able to access those comments myself in Committee. The Government will always look at issues that are raised by officials such as the Information Commissioner. I am not aware that a formal request has been made in relation to those points, but I understand that the Information Commissioner set out some concerns to the Home Affairs Committee this morning. I am sorry that I cannot respond more formally on that matter, not having had the benefit of looking at those comments yet.

Tom Watson (Labour, West Bromwich East)

Will the Minister investigate and write to Committee members when he finds out what the situation is?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The Information Commissioner may wish to highlight his concerns in a more formal manner. He has obviously made some comments today, and the Government will always keep these issues under consideration. We have been minded to give effect to the coalition commitment to deal with concerns about local authority use of the Regulation of Investigatory Powers Act 2000, which is why the provisions have been framed as they are. It would not be appropriate for me to give a commitment today to embark on the formal review that the hon. Gentleman and the hon. Member for Gedling seek, particularly as other work is ongoing elsewhere.

The hon. Gentleman may be aware of concerns about the use of covert human intelligence sources. The Independent Police Complaints Commission, the Serious Organised Crime Agency and Her Majesty’s inspectorate of constabulary reviews into recent covert human intelligence sources deployments by the police will help to establish the facts of what happened in those situations, and will help to identify what action should be taken to develop best practice. It would be premature to pre-empt the findings of such reviews if the argument is that we should look at RIPA in a broader way.

It is likely that a number of reports and recommendations will be forthcoming. In the light of the evidence that has been provided to it by the Information Commissioner, the Home Affairs Committee itself might equally make recommendations to the Government. It is appropriate for Government to await those reports and recommendations before determining the correct way to respond and move forward. I would not like to pre-empt those.

Tom Watson (Labour, West Bromwich East)

The Minister is being uncharacteristically coy on this matter. Legislation is not like buses; it only comes occasionally. If we miss our slots, change might not happen. Will he at least acknowledge that were he to consider those reviews and get his officials to brief him, were he to consider what all the professional advisers to Government, the commissioners, the police and the Director of Public Prosecutions are saying about the use of RIPA, the Bill might be the vehicle by which to change legislation, and that it is logistically possible to do that at a later stage?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman will well appreciate that there are complex areas of law, and that a number of different agencies and organisations are engaged in the matter. As I have highlighted, I am not seeking to be coy; I am seeking to await the evidence and recommendations of various bodies that are looking at a number of different issues. I am sure that he would not wish to rush into legislative changes that may make the situation worse or may add less clarity to a situation and cause even more problems. It is incumbent on the Government, therefore, to consider carefully evidence that is provided to them on such matters of law before taking a pre-emptive step. I am happy to give way to the hon. Gentleman again in case he thinks that I am being too coy yet again.

Tom Watson (Labour, West Bromwich East)

May I praise the Minister on the quality of his Bill team? They strike me as being extremely efficient, professional and able to deal at any moment with any demands that we throw at them, and they deal with such things at the last minute. I bow down to their ability. Were the Minister to listen to the Director of Public Prosecutions, who asked for RIPA to be clarified, and the Information Commissioner’s demands this morning that it needs clarity, and if the Metropolitan police had put pressure on those Bill teams, does the Minister agree that they are perfectly capable of coming up with an amendment that will stand the test of time?

James Brokenshire (Conservative, Old Bexley and Sidcup)

On the proposals that we have introduced, there has been public consultation. Given that they have been part of the counter-terrorism review, we have had independent oversight of the provisions, and therefore they have been considered in a very measured and careful way. We will consider further information, requirements or requests in a careful and considered way. I can certainly give the hon. Gentleman that assurance. If requests are made by the Information Commissioner in terms of the evidence that he may have provided to the Home Affairs Committee, the Government will consider such requests in a careful and measured way to ensure that we examine how best to respond. I can certainly give the hon. Gentleman that assurance. Clearly, the Government will reflect on any formal approaches and examine the issues.

The Regulation of Investigatory Powers Act 2000, which the hon. Gentleman has already highlight as being a sensitive piece of legislation, and as something that has various legal complexities attached to it, needs to be examined carefully and calmly. Rather than responding in a coy way, I am responding in a careful and calm way, reflecting on and respecting the issues. With those comments, I hope that the hon. Member for Gedling will be minded to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I should like to test the view of the Committee on new clause 12. It is an important amendment. In the Bill, the Minister already gives the Secretary of State the power to extend the judicial approval process to other public authorities, should the Secretary of State in future decide that the Bill as it stands does not go far enough and the Bill should include other public authorities. I disagree with its being subject to a negative resolution procedure; it should be an affirmative resolution procedure that determines whether such judicial processes should be extended to other public authorities. If the Minister is giving himself the power to extend the judicial approval process should it be believed to be necessary in future, he must wonder whether the RIPA process as currently established is sufficient.

As my hon. Friend the Member for West Bromwich East said, and as I said in my introductory remarks, the Government have in essence limited themselves to dealing with a specific problem on which they have felt buffeted—all Governments, including the previous one, feel buffeted—because of media pressure following one or two dreadful uses of RIPA powers by local authorities. This has been my theme all the way through the Bill—the Bill amends bits of legislation, but there is a missed opportunity. The Government are telling themselves that they need a big, fresh new look at everything, whether it is RIPA or DNA, or whether we need to establish one overarching commissioner under whom everything is brought together rather than having separate commissioners set up as laid out in the Bill.

The amendment that I have tabled, which also stands in the names of my hon. Friends, again points out that many people believe that RIPA as it is now operating, a few years after it came into force, needs a review. Frankly, that is true of all legislation. When it operates, it has consequences that people do not always understand or that are unintended. The Bill is a missed opportunity. As my hon. Friend the Member for West Bromwich East and others pointed out, a number of people have said that now is the time to look at RIPA in the round, and not just to deal with the specific problem with local authorities. There are wider issues that need to be looked at and dealt with. New clause 12 would give the Government the opportunity to do that. Mr Caton, I would like to the press that to a Division, either now or at the appropriate time.

Martin Caton (Labour, Gower)

We will deal with that at the appropriate time. You indicated that you will seek a Division on new clause 12. Do you intend to press amendment 103?

Vernon Coaker (Labour, Gedling)

No. I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I would like to ask the Minister some questions regarding a couple of points raised by the Local Government Group; I could not see anywhere else to do it other than in a stand part debate.

While the group does not object to the Government’s proposals to have councils in England and Wales apply to magistrates to get judicial approval, it believes that a couple of issues need to be addressed. First, an officer of the council, rather than someone legally qualified, should be able to apply to the court to authorise the activity, as council officers generally can do when applying for warrants. If that is not the case, an additional cost will be imposed on councils and officers using covert surveillance, who already have the expertise and knowledge of the legislation to make the application appropriately. What is the Minister’s view of that? Secondly, what will happen when councils feel that it is appropriate to ask for an immediate response in an urgent case? Will the Minister comment on those two issues that the LGG has raised?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I can confirm that it is not our intention to require a solicitor or other legally qualified person to appear in court to seek the magistrate’s approval for an authorisation. The hon. Gentleman is right in saying that it is currently possible for local authorities to authorise their own officers to appear in court. We have identified that as one route of ensuring that the most appropriate person is able to seek the magistrate’s approval. As he said, the Local Government Group has raised a concern that requiring local authorities to authorise their officers to appear before magistrates will unnecessarily increase bureaucracy. I can assure him and, through him, the LGG, that we will continue to work with it to assess the likely impact, explore other methods of representation and devise an appropriate solution to the points that it has made; it has flagged a fair issue.

I went through a number of the points raised by the hon. Gentleman in an earlier clause, regarding how we envisage the process of making applications to operate. We are determined to make it as least bureaucratic as possible, providing a safeguard in a sensible way. If there are issues on expedition, where an expedited application may be required, we will work with the Ministry of Justice and the Courts Service on how they may be accommodated practically. I think that the LGG has raised fair and reasonable points, and we will certainly continue to work with it on the practical implementation of the Bill and seek to address the points that it has flagged.

Clause 39

Vernon Coaker (Labour, Gedling)

This chapter of the Bill deals with powers of entry, and with the Government’s desire to show again that they are protecting freedoms by abolishing all sorts of powers of entry that have existed for years. We have all been so bothered about them, haven’t we? I do not know whether anyone’s life has been desperately affected by schedule 2, but it is an interesting reading. I think that at some point the Government said, “We’ve got to do something about powers of entry because we’ve got a protection of freedoms Bill coming up. We want all civil servants to write around everywhere and see what anyone can come up with about powers of entry, and then see whether we can assembly a collection of them so that we can show how radical we are, and how determined we are to protect the individual liberty of the citizen in this country, who is walking around in fear of all of these various powers of entry being used against them.” That is why the powers have been repealed.

I do not in any way want to give the Committee the view that I do not take the issue seriously, but I have to say that I did not know that there was still a power to enter property to seek out distribution of German enemy property. It is also interesting to see mention of the Hypnotism Act 1952, although I do not know how someone would know that it had happened—[Interruption.] Do not start doing that. I know that the Committee will have read these provisions, but they are amusing. There is a power for a constable to enter premises where entertainment is held to see if there is reasonable cause to believe that there is a contravention of the 1952 Act—but it does not say what that was.

The serious point, however, is that some of the powers were introduced for good reason. The Government have schedule 2 in the Bill, and the provisions look reasonable, but we then make the mistake of having an evidence session and asking the Local Government Group whether it agrees that the regulations in the schedule contain unnecessary powers of entry that could be repealed without any impact. Of course, the group came back to us and said that some of the things being repealed in schedule 2 were powers of entry that were useful to it, and it asked the Government to reflect on them. In addressing clause 39, the Minister needs to explain whether he agrees with what the Local Government Group stated in its memorandum:

“Of those powers proposed for revocation under Schedule 2 of the Bill, the LG Group believes the powers under the Older Cattle (Disposal) (England) Regulations 2005 and those under the Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006, should be retained.”

If I am really honest, and you might find this difficult to believe, Mr Caton, I have no idea what powers of entry would be used under those regulations, but I do know that the Minister has included in the fantastic list, on page 102 of the Bill, of powers of entry to be repealed, two regulations that contain powers of entry that the Local Government Group says should not be repealed. Is the Minister going to table an amendment on Report to take those regulations out of the list, or do the Government propose to disregard everything that the public have said in the Public Reading stage and plough ahead, even though the Local Government Group says that those two important powers of entry should be kept?

Clause 39 is significant. No one in their right mind would disagree with repealing powers of entry that are no longer necessary or no longer required, but as Justice pointed out, they give the Government significant authority to revoke some powers of entry that were brought in because they were considered necessary. I highlighted what the Local Government Group said because I want to know whether there will be proper and full consultation with those who might be adversely affected by such action. I accept that we will come later to the issuing of codes and so on, but people want to know about such matters.

Of course, it is easier to say, “Isn’t it outrageous that there are about 1,600 powers of entry? That is scandalous. In the new world that we are living in, we want to protect freedom so we shall repeal powers of entry to make us all feel free and newly liberated”, but protection of freedom is about giving the state the opportunity to enforce the law so that it protects the rights and livelihoods of the citizen, too. What process will be available to members of the public whereby their interests will be taken into account, when a Secretary of State considers that the repeal of legislation is necessary?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I know that the hon. Gentleman was looking to liven the mood a little this afternoon by highlighting a few examples referred to under the schedule. I was quietly wondering whether there would be a last minute, perhaps cross-party amendment from the Opposition Whips Office and the Government Whips Office for the removal of the Hypnotism Act 1952 provisions under schedule 2. [ Interruption. ] I am making a note now. I can assure the hon. Gentleman that the specific provisions under schedule 2 were considered carefully and I shall address the comments of the Local Government Group.

At the outset, it is worth my underlining the fact that there has been a significant increase in the number of powers of entry in recent years. About 1,200 separate powers now allow officials entry into businesses or private homes, half of which have been created since 1997. That proliferation of powers of entry is not acceptable. It was interesting that the Home Office, under the previous Government, perhaps recognising that there might have been a bit of a problem, conducted a review of powers of entry in 2007-08. In 2008, the initial stage of the review process was completed by publishing—admittedly, for the first time ever—a list of powers of entry, associated statutory powers, who can exercise them and the rights and safeguards attached to them. It showed 1,208 powers of entry under 295 statutes and 286 statutory instruments but, rather than do anything about them, the then Government continued to add to them so that our current analysis now shows 1,229 powers of entry.

After conducting the review, one might have thought that the then Government—having looked at the issue and recognised the significant number, the scope and application of them—would have done something about the problem. But they did not, and that is why we are bringing forward measures under the Bill to ensure that the powers of entry are dealt with appropriately.

The changes we propose will require Departments to consider properly whether such powers are necessary and whether to reduce their number. We will protect the privacy of home owners by removing unjustified and unreasonable powers of entry, and ensure that the remainder are proportionate and subject to appropriate safeguards.

Before responding to some of the detail in relation to clause 39, it may assist the Committee if I briefly overview the provisions in part 3 of chapter 1 as a whole as it is important to see the overall link between all of the relevant provisions, given that there are three main elements to the provision. First, the chapter creates the order-making powers that provide for the repeal of unnecessary powers of entry, the addition of new safeguards better to protect the rights of home owners and others, and the rewriting of powers of entry allowing for similar powers of entry to be grouped together and replaced with a single power coupled with the inclusion of additional safeguards. In each case these powers are exercisable both by a Minister of the Crown and, in the case of powers of entry which relate to devolved matters in Wales, by the Welsh Ministers.

Secondly, a duty is placed on Cabinet Ministers to conduct a full review of all existing powers of entry. Thirdly, provision is made for a statutory code of practice governing the exercise of powers of entry and thereby conferring further protection on householders and others. Clause 39 contains the first of the three order-making powers. This provides for the repeal of unnecessary or inappropriate powers of entry contained in either primary or secondary legislation. The power also extends to what the clause describes as associated powers, a term which is then defined in clause 46. In many cases powers of entry are only a means to an end. Once on the premises in question, state officials can exercise various associated powers, for example to search or inspect the premises or to seize material found thereon. The order-making power in clause 39 enables an associated power to be repealed independently of the power of entry to which it relates.

As the hon. Gentleman has highlighted, the clause also introduces schedule 2 to the Bill which contains a first tranche of repeals. The 15 powers of entry repealed by schedule 2 should be viewed as a statement of intent in relation to the further work. I would be the first to recognise that in repealing 15 out of 1,200 such powers, we are just scratching the surface. There is a long way to go but it is certainly a start. My expectation is that the review required by clause 42, which we will come to shortly, will lead to many more of these powers being appealed.

On the specifics of two of the pieces of legislation that are being repealed by the clause and schedule 2, there may have been a misunderstanding by the Local Government Group about the Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006. During 2006-07, a one-off 12-month investigation of the prevalence of salmonella in turkeys and slaughter pigs was carried out to obtain relevant baseline data and the regulations provided the powers of enforcement for those one-off surveys of slaughter pigs and turkeys. The baseline surveys have been concluded and it is on that basis that the powers are no longer required. Again, given that this related to a survey in 2006-07, it may be that there has been some misunderstanding by the Local Government Group about that.

On the Older Cattle (Disposal)(England) Regulations 2005, there were various schemes such as the over 30-month slaughter scheme. It was necessary to store some of the by-products generated from the rendering process and all of the waste material produced during the decontamination protocol needed to be incinerated under supervision by the competent authority. To ensure that this has been achieved there was a requirement to access the processing sites. We anticipated that the residual clean-down works would be completed by 31 March—so they should already have been completed—but to take into account any slippage, the powers of entry will be repealed on 31 March 2012, on the assumption that the Bill is duly passed by this House and in the other place. By the time that the Bill comes into effect, the clear advice that I have received from colleagues elsewhere in Government is that the power will have become otiose. It is, therefore, perhaps a question of timing, but we recognise that we should not keep those powers of entry on the statute book for longer than is required.

Michael Ellis (Conservative, Northampton North)

I will resist the temptation to ask the Minister whether there has ever been an occasion under the Hypnotism Act 1952 of a raid on someone’s property. I understand that there are provisions still in force that provide power of entry to a property for such things as a bees’ nest. Is the Minister confident that other areas where there might be room for repeal will be looked at?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Member for West Bromwich East was kind enough to compliment my officials on the preparation work that they have done for the Bill. I am pleased to add my thanks for the support that they have provided, and continue to provide, to me and to my hon. Friend the Minister for Equalities. I can say to my hon. Friend the Member for Northampton North that, in relation to the powers under the 1952 Act, there is no evidence on how often the power is used, but it is thought that its exercise was very rare and that the police are content for it to be repealed. I hope that that gives him some reassurance on that specific point.

As I think I commented on with regard to the overall structure of this part of the Bill, it is intended that there will be the continuing review process—the duty placed on the Secretary of State. I am sure that that will identify other examples of powers that should either not be there because they have fulfilled the purpose for which they were put in place, or which, on reflection, are not required. I have every confidence that further provisions and examples will be forthcoming as a result of the mechanism contained in the Bill.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I just wanted to ask the Minister whether the review process would look at whether the powers of entry have been used appropriately. Of course, they may indeed be used occasionally, but they may have been used incorrectly and therefore should also be got rid of for that reason.

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend makes a fair and valid point. There is the issue of whether powers of entry should not be there, when the judgment is taken, the review process that is contained in the Bill and the new duty that is placed on the Secretary of State. Equally, I am sure that we will come on to the publication of the code of practice in relation to clause 50 and the examination of particular powers that are there to ensure that they are used appropriately. I hope, with the provisions that we will come on to, that he will recognise that that particular concern is being addressed. With those comments, I hope that hon. Members will be minded to include the clause in the Bill.

Clause 41

Vernon Coaker (Labour, Gedling)

It should not go unremarked, in speaking to clause 41, that I remember that when in opposition the Minister, and indeed the hon. Member for Carshalton and Wallington and many others, used to talk about the undesirable nature of Henry VIII clauses—in effect, open-ended legislation allowing Government Ministers to do what they wanted—and that, even if they were subject to affirmative resolution, they were not the appropriate way forward. It has not taken the current Government long to get into the use of Henry VIII clauses—they run right the way through all of these various clauses. The Lord Chief Justice said fairly recently that all Governments should resist Henry VIII clauses. All parties when in power say how necessary they are, and when in opposition they say how unnecessary. It did not take the coalition Government long to retreat.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

It didn’t take us long to adopt Labour’s ways.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman is always supposed to have stood for being holier than thou on such issues. It did not take long for that to go out of the window.

Mark Tami (Labour, Alyn and Deeside)

Does my hon. Friend recall that the hon. Gentleman used to take the same attitude to programme motions as well?

Vernon Coaker (Labour, Gedling)

I do. I also remember saying to the hon. Gentleman who is now the Minister, with respect to Henry VIII clauses and programme motions, “You wait till you’re in government.” Now his party is in government, and they are doing exactly the same. Maybe it is just one of those things that comes with being in power: when in power, we have to use them, and when in opposition, we take a different view.

Clause 41 allows the “appropriate national authority”, which might mean various Secretaries of State, to rewrite powers of entry, “with or without modifications”. That is laid out in subsection (1). Subsection (3) goes on to say:

“But no order under this section may alter the effect”

of that rewriting or modification if that would reduce the safeguards on the power of entry and associated powers and undermine the level of protection afforded to the public by the powers of entry. It is all very well to place that on the face of the Bill—

Martin Caton (Labour, Gower)

The Committee will recall that Mr Coaker was speaking in the clause 41 stand part debate.

Vernon Coaker (Labour, Gedling)

Just to re-establish where we were, I was asking the Minister to clarify subsection (3) in relation to subsections (1) and (2). Clearly, no modification or change can be made if the level of protection afforded to the public is diminished as a consequence of that modification or change. If the Secretary of State decides to change the power of entry, she has to have regard to subsection (3), but it is unclear to me who will make the assessment that that action does not impact on subsection (3). If that is done by the Secretary of State, she is judge and jury of herself. How will subsection (3) work in practice? I shall be interested to hear the Minister’s reply and I may want to respond to it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I note that I have been gently chided in relation to the use of Henry VIII powers. However, I say to the hon. Gentleman that the provisions in this clause and elsewhere—including clauses 39 and 40—are written to constrain the power that is capable of being utilised in the order-making provisions. He will be aware that clause 43 on consultation requirements, which we might also reach today, will equally be applicable.

We certainly consider the order-making powers to be appropriate. As I have said, in each case the order-making power is constrained; for example, the power in clause 39 may be used only to repeal powers of entry. Any order for the use of the rewrite power must contain safeguards providing a greater level of protection than was previously the case. Accordingly, those powers will enhance civil liberties. It is therefore unnecessary to have the same degree of scrutiny as might be needed for primary legislation. Rather than taking the view suggested by the hon. Gentleman that we are going for a broad approach to order-making powers, we have not sought to do so. We have taken a more measured approach on the provisions.

In addition, Departments are not yet in a position to identify all the powers of entry or associated powers that might be ripe for repeal or rewriting, and secondary legislation allows the flexibility to repeal or rewrite powers once the statutory duty to review has been carried out. As I have said, preliminary analysis of the 1,200 or so powers of entry indicates that many of them relate to very similar functions. For example, powers of entry to inspect animals for disease have separate powers for different animals and diseases. It might be possible to have one overarching power in relation to animal welfare. Such a process, as well as reducing the overall number of powers of entry, will provide greater clarity for those exercising the powers and greater transparency for those who may be on the receiving end.

I recognise that this is a wide order-making power, but the driver behind all the powers in this chapter is to afford greater protection to householders and businesses. In this case, the clause expressly provides that when taken together, the provisions of any order must provide a greater level of protection than was previously the case. That is an important safeguard. We fully expect that when considering whether to bring together powers of entry under the rewrite power, we would examine critically whether the current safeguards were adequate.

The expectation would be—the clause requires it—that, as part of the rewriting process, further safeguards would be attached either to the powers of entry or to the associated powers, which we discussed in the previous debate, or to both. The Minister making the order will make the judgment that it is subject to review by the Joint Committee on Statutory Instruments, the Merits of Statutory Instruments Committee in another place and the courts through judicial review. This is not, as the hon. Gentleman was suggesting, a carte blanche approach. He was suggesting that a potential challenge could be brought on the improper use of the clause. Clearly, there is the opportunity for judicial review if the power is used in an inappropriate way; analysis, consideration and scrutiny can be applied. Equally, as I have already indicated, there is the need for consultation to have taken place before this power or any of the other order-making powers are exercised.

With that reassurance, I hope that the hon. Gentleman and other members of the Committee will recognise that the Government have considered the matter carefully and that they will be minded to ensure that the clause stands part of the Bill.

Vernon Coaker (Labour, Gedling)

That was a helpful reply from the Minister. At some point, when his officials reread this short discussion and his comments that whatever the Secretary of State does will be subject to some safeguards, the Minister will have to reflect on whether that is sufficient. There will be discussion in the Department about whether there are sufficient safeguards on the Secretary of State rewriting the powers of entry, particularly in respect of subsection (3) and who monitors and judges whether it has been adhered to by the appropriate national authority.

Clause 42

Vernon Coaker (Labour, Gedling)

The clause creates a

“Duty to review certain existing powers of entry.”

Can the Minister explain why the word “certain” is in the title of the clause, because it implies a limitation on the number of powers of entry that will be investigated? Why does it not just say “Duty to review existing powers of entry”? I do not understand why the word “certain” is in the title at all.

Can the Minister also explain why it is necessary to put in clause 42(2):

“A failure by a Minister of the Crown to comply with a duty under subsection (1)”?

Under what circumstances does the Minister envisage a Minister of the Crown failing to comply with the law? I cannot imagine a member of this Government, the last Government or any Government wilfully failing to comply with the law. Does the measure just apply if they do it by accident? I do not know, but it is such a major duty that I do not understand how they could fail to comply if it was not a wilful failure. I would be grateful if the Minister could explain those two points about the clause.

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Gentleman has highlighted, we consider the clause important in terms of the safeguards that are being afforded in relation to powers of entry. The use of the term

“certain existing powers of entry”

is not in some way to restrict or limit the duty placed on each Cabinet Minister to review powers of entry and the associated powers for which they are responsible. Obviously there is a time period—within two years of Royal Assent of the Bill—and that is likely to be by early 2014. The use of the word “certain” was meant to be sensitive to the fact that powers of entry may relate to devolved matters. In other words, there are matters that it would not be appropriate for a UK Government Minister to review, because they had been devolved. It was simply to recognise that sensitivity that the word “certain” was used, rather than to say in some way that the duty on each Cabinet Minister is limited. The clause will provide an opportunity for the first time to analyse fully all identified powers of entry and associated powers, and to determine whether they continue to be necessary and appropriate.

Of course we expect Ministers to comply with the duty to review. That is absolutely clear and we regard the duty as a new and significant power. Subsection (2) is a safety valve in case, for example, a power of entry is overlooked as part of the review, given that there are 1,200 of those powers and their number has grown so much, as has been said already. Subsection (2) is intended to address perhaps a technical failing or indeed an argument that the approach we are using has not properly considered one of the powers of entry, and to ensure that that of itself is not taken to undermine the continuing validity of the power at that point in time.

The reviews will also consider whether the existing powers of entry and associated powers have adequate safeguards attached to them, or whether they need strengthening in some way. Finally the reviews will examine whether there is scope to consolidate similar powers of entry using the rewrite provisions.

As we have already noted, there are 1,200 separate powers and the proposed review will provide an opportunity to shine a light on all of them, to question whether they are fully justified and proportionate. It will also provide an opportunity to analyse the powers, to give us a full picture of which state officials can exercise them and in what circumstances. That information will make the use of the powers more transparent to Parliament and to the general public.

Following each review, each Minister will be required to submit a report to Parliament and I expect those reports to identify all the powers of entry and associated powers for which a Department is responsible, to show which powers are suitable for repeal or rewriting and which require additional safeguards.

It is possible that one Department might consider that another Department has lead responsibility on an issue. As far as I am concerned, there should not be that lack of clarity. The hon. Gentleman made the point, fairly, in relation to the protective power that there may be circumstances when that might inadvertently occur. I certainly hope that is not the case, and that Secretaries of State in this and future Governments will conduct their responsibilities appropriately, but we are providing a safety net.

It is important to highlight the fact that we have put in place a gateway mechanism to ensure that the creation of any new powers is tightly controlled. In other words, we have the review and the provision relating to existing powers, but if new powers are sought, there is a gateway process, which is managed by the Home Office, and requires Departments seeking to introduce new powers to go through an application process to demonstrate whether they are necessary and proportionate and contain adequate safeguards. In addition, supplementing the provisions in the Bill, the Government are seeking to examine the matter internally, and because of the significance that we attach to powers of entry we are putting in place new mechanisms and gateways to provide pre-emptive protection when considering such issues.

Vernon Coaker (Labour, Gedling)

Will the Minister provide clarification to ensure that I understand him correctly? Is he saying that the Home Office acts as a gateway for all Departments if they want to introduce a power of entry with respect to their own responsibilities? Will the Home Secretary determine that, and sit in judgment on each Department? Is that how it works?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am sure that the hon. Gentleman, having served as a Minister, is aware that the Government have various internal clearance processes for the introduction of new proposals and measures in a Bill. In essence, the Home Office, and the Home Secretary or a Home Office Minister, have a mechanism to assess requests for new powers of entry, so there is an internal gatekeeping role, which some Departments fulfil in other ways. He will be familiar with that from his time in government. There is an additional internal check and balance to ensure that powers of entry are considered carefully, and that their significance is given the weight that should be attached to them.

With that explanation, I hope that I have responded to the questions that the hon. Gentleman highlighted, and provided helpful further information to the Committee on the application of the clause and, more broadly, the Government’s intention.

Clause 43

Vernon Coaker (Labour, Gedling)

This is one of those clauses in which the Minister has not provided a list of who should be consulted. It merely refers to people who seem to be appropriate, and

“such other persons as the appropriate national authority considers appropriate.”

Will he say a little more about who such people would be, and put a little more flesh on the bones?

I recognise that there is always a problem. If there is no list, people say, “Who do you mean?” and if you provide a list they say, “You haven’t included everyone.” Having said that, I think it is important to have further details of who should be consulted prior to some of the changes concerning powers of entry.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I sense that this is a continuation of discussions that the hon. Gentleman and I have had on many previous Bills about lists, their operation, and whether they capture everyone who is intended to be captured when being prescriptive in this way. There are some 1,200 powers of entry, so different Departments have different stakeholders, different interest groups and different people who may be affected. I hope that he will recognise how we have approached the drafting of clause 43(a). It would be very difficult to provide a meaningful list given that all Government Departments would need to have been engaged in it, and we would probably find that such a list would run to several pages and still somebody would be missed out. If we reflect on and respect the nature of the subject matter, the approach that we have taken in clause 43(a) is the appropriate one in the circumstances. For example, if we were talking about modifying powers of entry exercised by the police, we would certainly expect to consult the Association of Chief Police Officers or, in the case of powers exercised by trading standards officers, the responsible Department would consult the Association of Chief Trading Standards Officers.

Being prescriptive will probably not help the hon. Gentleman in his understandable desire to ensure that appropriate people are consulted. Given the broad nature of what we are discussing, the approach taken in clause 43 is the appropriate way of dealing with what is likely to be a very complex matter. Regardless of anything that he and I have debated previously, it does not naturally lend itself to a prescriptive list in the way that other provisions might.

Clause 45

Clause 47

Vernon Coaker (Labour, Gedling)

I beg to move amendment 104, in clause 47, page 34, line 9, leave out subsection (1) and insert—

‘(1) The Secretary of State must establish an independent inquiry into the exercise of powers of entry and associated powers in England and Wales.

(1A) The inquiry must in particular examine issues relating to—

(a) bailiffs;

(b) squatters.

(1B) Having considered the recommendations of that enquiry, and following a report on those recommendations to Parliament, the Secretary of State must prepare a code of practice containing guidance about powers of entry and associated powers in England and Wales.’.

The amendment is important; it is part of the ongoing theme that I have had as the Bill has progressed. It amends certain aspects of legislation, with which many of us could agree. We could have a debate about whether it goes too far or not far enough, but it has not included a whole range of issues to do with the protection of freedom, which many people would regard as important. In the previous portion of the Bill, we considered RIPA and the need for a more thorough revision of that rather than the limited amendments that the Government tabled in relation to local authorities.

Similarly, with the powers of entry and associated powers, which are so important, the Government have put together enabling powers—Henry VIII powers— because they think there is an issue here. They make a headline with 1,600 powers of entry: “Absolutely disgraceful. It shows that the state is out of control and that something needs to be done.” There is no clear sense about that other than as a rhetorical flourish. There is no real evidence, but the Government can step in, give Secretaries of State the power over the next year or two to review, modify and change all these things, and in that sense enhance the liberty of the citizens of this country. I think the Bill misses a trick.

As I have repeatedly said, if they had stepped back, the Government would have been able to come up with a much more radical, thorough, ongoing revision of a whole range of different things, but they have failed to do so. The Minister will say that this is just the first step, that the Government will move on from here and so on, but I think that the Bill is a missed opportunity in that sense. I encourage him to get on with it.

I highlighted two examples of powers of entry and associated powers that people are concerned about. To answer the hon. Member for Carshalton and Wallington, people come to me consistently about those matters. A lot of people have come to me about bailiffs’ powers of entry, for example. There is not a squeak in the Bill about bailiffs. People generally are confused about what bailiffs can and cannot do. Many of us, as constituency MPs, will have had people complain to us about bailiffs. During the last Government, we considered the issue and were in the process of changing things. A Bill was introduced, some of which has been implemented and some of which has not.

The Government talk about the protection of freedoms. One great unregulated area about which people feel disquiet, discontent, upset and concern is the operation of bailiffs. If I asked everybody here to tell us exactly what powers bailiffs have to enter a property, what their rights and entitlements are and what the law says, I wonder whether many of us could give an accurate answer. My notes from the Library say that a bailiff cannot make a forcible entry into a property. Let me start by saying that I know that there are many good bailiffs and bailiff organisations. I do not know about anybody else here, but I have heard of cases in which bailiffs have made forcible entry into a property—a door has been slightly ajar and they have put their foot in, or whatever. There are numerous examples of that happening.

What about seizure of property by bailiffs as an associated power? What powers do they have to seize property? Again, we do not know. Are bailiffs entitled to charge fees for what they do? Bailiffs’ powers are supposed to be limited, but again, it is unclear what those limits are. Given that disquiet has been felt for many years, and that there have been recent examples in the papers, I would have thought that if the Government were considering powers of entry and the need to change the law to make things better and protect freedoms and the rights of individuals, they would regulate properly the people who collect fines, debts, council tax, unpaid benefits and so on. The Government should legislate in that area of policy as a matter of urgency, because many people out there say that it is a problem.

Bailiffs often deal with some of the most vulnerable people in our communities. Again, that seems to suggest the need for urgency. An inquiry into the various and associated powers of entry would have been helpful to the Government. Importantly, alongside that, an inquiry could consider what we should do about bailiffs. However, maybe the Government already have plans afoot to do something about them. If so, the Minister will be able to outline to us in great detail where we are with respect to bailiffs. What will happen? What Bill will deal with the issue of bailiffs? Will it be a Home Office or a Ministry of Justice Bill?

Nicola Blackwood (Conservative, Oxford West and Abingdon)

I wonder whether the hon. Gentleman can be of assistance to a new Member. I am struggling to follow his argument. Can he explain exactly how many inquiries he has now proposed, and how much time it might take before we would be able to pass this or a similar Bill?

Vernon Coaker (Labour, Gedling)

So far this is the third inquiry that I have asked for. I say to the hon. Lady that at least with an independent inquiry we are trying to legislate on the basis of evidence and on what we are being told. We have seen from the independent inquiries that have been rejected by the Government, that on a whole range of issues they have legislated on the basis of perception, or of what they think should be done, rather than on the basis of evidence. An independent inquiry would provide the evidence and the facts that we need in order to legislate—instead of acting in haste. Let me have a quiet bet with the hon. Lady—I predict that next year or in 18 months’ time, the Government will be back amending aspects of the Bill because it has not worked out as they thought it would and because they had not thought through all the various issues.

The other point that I keep making about the independent inquiry—I am surprised at the Liberal members of the coalition—is that it is a missed opportunity for the Government. If they so wanted, they could have moved forward in a much more radical way. Instead of that, we have a Christmas tree Bill with huge numbers of subsections. It has a bit dealing with that and a bit dealing with this, so that the Government can say that in many respects they are dealing with the protection of freedom. Yet on a whole range of issues, the Bill is silent. We will return on Report to another matter that it is silent about—the intercept modernisation programme. That was one of the biggest things that we were criticised for, but the Government are carrying it forward apace.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the hon. Gentleman agree that in the run-up to the 2010 general election—indeed, in the many years before that—both the Liberal Democrats and the Conservatives had a great and long opportunity to assess the previous Government’s legislation across a raft of civil liberties? We had identified a large number of issues that we wanted to address, which were reflected in our respective manifestos. Those matters have therefore been considered and this is not a knee-jerk reaction; it is a considered programme that we have built up over a number of years.

Vernon Coaker (Labour, Gedling)

It might be a considered programme in the hon. Gentleman’s eyes, but I think that essentially it is an amending piece of legislation rather than a fully thought out, principled piece that brings together a range of measures in a new vision of what liberty means in the modern state. In that sense, it is a missed opportunity.

Steven Baker (Conservative, Wycombe)

Listening to the hon. Gentleman, I am struck by the number of times that we have been accused in the main Chamber of being ideological. Is it now the case that his party is appealing for us to be ideological?

Vernon Coaker (Labour, Gedling)

I am not appealing to the hon. Gentleman to be ideological; I am appealing to him to have some thorough, up-front principle that gives something on which the rest of the Bill hangs. [ Interruption. ] Does the hon. Gentleman want to intervene again?

Steven Baker (Conservative, Wycombe)

Again, the hon. Gentleman seems to be appealing for an ideology—marvellous, I am delighted. But let us be consistent and appeal at all times for a consistent ideology on which to base practical politics.

Vernon Coaker (Labour, Gedling)

That was the problem for the hon. Gentleman, because he could not wait until I had finished before he got over-excited and had to interrupt. The point that I was about to make was that in putting the principle into effect, a big, up-front policy is needed. I would have considered introducing something like a privacy commissioner, which would bring all the commissioners together. It would add an up-front, practical policy on which all those various other measures could rest. There is nothing ideological about that. It is a principled policy objective made possible through a legislative change. That is not ideological; ideological is when people spout beliefs and ideology with no idea about how to put them into practice. Introducing a privacy commissioner might be one of the ways to do that.

The amendment seeks to ask the Government to do something about an aspect of powers of entry about which the Bill is completely silent—bailiffs. I hope that the Minister will inform us about the Government’s intentions with respect to that.

An associated issue is that of squatters, which we also need to consider. Again, I would be interested in what the Minister has to say about that. We have heard concerns that squatters seem to have rights and powers of entry into certain properties, and no one seems to be able to do anything about it, even if they simply enter the property illegally, and regardless of how they illegally enter the property and how they stay there. Will the Minister explain the Government’s intention on squatters? How do they intend to do something about that? Does the Minister have plans to deal with it?

We are seeking to address problems that our constituents in the country feel need to be dealt with. We have powers of entry and the need to tackle them. The Government have come forward with a whole range of various powers of entry that they seek to repeal, many of which have no impact at all on an individual’s liberty or on any of our constituents. However, it means that the Government can say, “We have started to do it.” We then have proposals that will give the Secretary of State virtually unlimited power to rewrite any power of entry, without consideration of the principle on which that should be based. On two or three of the issues that people face in their lives, squatters and bailiffs—one could go on to others—the Bill is completely silent. It would be interesting to see the Minister’s response to the amendment, particularly to the problem of bailiffs and squatters that I have highlighted.

Steven Baker (Conservative, Wycombe)

Following the exchange of interventions, which I very much enjoyed, and reflecting on the amendment, I am aware of a principle that comes out, which I think could be more deeply entrenched in the Bill. If we were to look for a principle and express it in one word, for me that word would be “property.” The amendment is quite insightful—although of course I will not be supporting it—by bringing together the questions of bailiffs and squatters. The hon. Member for Gedling has hit the nail on the head. The issue in talking about freedom is often property. However, we would struggle to be consistent about the application of property rights. Without wishing to stray out of order, Mr Caton, if we were to apply property rights to, for example, wheel clamping, we might have found ourselves obliged to continue allowing clamping on private property, which is not something that any of our constituents seem to want, unless they suffer from the problem of rogue drivers.

Returning to the amendment, I think the hon. Gentleman has proposed an insightful amendment. The principle that he is searching for, on which all freedom could be hung, is the concept of property, and I would invite the Government to consider that concept throughout the Bill.

Jim Shannon (DUP, Strangford)

I would like to ask a couple of questions. I am always mindful that I am a representative from Northern Ireland, and so I am conscious when we talk about legislation that is particular to Wales. My questions are related to a debate that took place in Westminster Hall about a month ago, when squatters’ rights were debated. I want to ask the hon. Member for Gedling what consideration he has given to that debate—he probably has a copy of the Hansard of that—and the questions that were asked.

The issue of squatters—and bailiffs—is clear. People come and take over a house. They change the locks, phone up the electricity and water companies to get electricity and water connected, and they continue to live in that house. The rights of the person who owns that house are then disadvantaged. At the same time, I get correspondence about homeless people. Where in the Bill is the balance between the rights of people who have property and the rights of those who are homeless? Does the Bill ensure that homeless people have rights when, on occasion, landlords push the law a wee bit to try to get someone out? My questions are specifically about bailiffs and squatters. Has consideration been given to that matter in the legislation? If not, I will be disappointed, because the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt), gave an undertaking about that in that Westminster Hall debate.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Member for Gedling exhorted me to “get on with it”—I think that was his phraseology—meaning to have another inquiry. That does not, to me, feel like “getting on with it.” Be that as it may, it has been interesting to hear the Opposition’s points; sometimes such Bills are useful for teasing out of them their policy developments. It sounds as if an overarching privacy commissioner is now Opposition policy, and we will no doubt come on to discuss that further. Equally, having an inquiry on everything appears to be Opposition policy. I respect some of the hon. Gentleman’s points, and appreciate that they might come from a mindset of going through a policy review, but I gently say to him that a respect for his desire for us to get on with it is not necessarily aided by a further inquiry that is likely to take several years and might put off the action that he reasonably challenges the Government to take.

I will make just one small point about the hon. Gentleman’s amendment. There was a little mumbling on the Government Benches when he talked about the reference to squatters in the amendment. His amendment and his comments seem to suggest that existing lawful powers of entry were conferred on officials. I do not think that squatters exercise those rights, and I appreciate that in some ways his amendment is more probing in nature. We would certainly not want to give squatters a power of entry in that way. The hon. Gentleman seeks to highlight two specific issues, but the broad thrust of the Bill is to provide a mechanism for the Government to review their officials’ powers of entry—the duty that is placed on each Department. The Bill is an overarching framework that we seek to put in place across a swathe of issues, and does not seek to address specific issues in the way that the hon. Gentleman and other hon. Members have sought to highlight, in connection with bailiffs and squatters.

The hon. Member for Gedling has been asking questions about bailiffs, and the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), provided him with a reply to a parliamentary question on 22 March:

“The Government have given a commitment to provide more protection against aggressive bailiffs. We have identified options for public consultation on this commitment including the better regulation of bailiffs, the powers of bailiffs, their costs and how complaints should be dealt with. We are currently preparing the paper and intend to publish in spring 2011.”—[Official Report, 22 March 2011; Vol. 525, c. 971W.]

There is a desire—to return to the hon. Gentleman’s point—to get on with this, and there is that commitment from the Ministry of Justice.

To be fair to the hon. Gentleman, the previous Government legislated in the Tribunals, Courts and Enforcement Act 2007 to codify the powers of bailiffs. That was one of the many Public Bill Committees on which I sat when I was in opposition, and in opposition we broadly welcomed many of the provisions of that Act. But the then Government failed to bring those provisions into force. The Ministry of Justice is planning a consultation on the commencement of those provisions and, therefore, giving effect to a number of the points on which we supported the previous Government, as the previous Government recognised. The Ministry of Justice is getting on with it and bringing that into force to deal with the fair and legitimate concerns about rogue bailiffs and the practices that they undertake. I was concerned about that during our consideration of the 2007 Act, and I know it exercises the minds of my ministerial colleagues in the Ministry of Justice, too.

The Government are committed to looking at options for strengthening the law in relation to squatters. That might be through the creation of a new offence of squatting, or by strengthening the existing laws. Again, the Ministry of Justice intends to consult publicly on that issue and hopes to be in a position to announce those plans in more detail. I fully recognise the distress that can be caused by squatters, particularly when they occupy somebody’s home. That point has been sensitively and effectively made by hon. Members during the course of this debate. It is something that we recognise, and my colleagues in the Ministry of Justice will be bringing those proposals forward to strengthen the enforcement of the current law, as well as looking at the legislative options for addressing those points.

I would say to the hon. Member for Gedling that moving forward in that way is more appropriate than having a broader, wider inquiry into powers of entry, because it will give effect to the desires that he and other hon. Members have identified in this debate, as well as in previous debates.

The Government take both of those issues seriously and will be bringing forward proposals on them in due course. That is the better course of action, rather than tabling an amendment that would simply add yet another inquiry to the list that the hon. Gentleman has been drawing up today.

I hope that in the context of my response, the hon. Gentleman will be minded that that is the appropriate way forward, rather than pressing his amendment.

Jim Shannon (DUP, Strangford)

The Minister has not given an indication of when new legislation will be introduced to address squatters and bailiffs, but if we do not have a date or a time scale for that, the request for a public inquiry is legitimate.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I would hope that I have made it clear to the hon. Gentleman that we are proposing to act on that. My colleagues in the Ministry of Justice intend to consult publicly on that in due course. I hope that we will soon be in a position to announce plans in more detail. If the hon. Gentleman or other hon. Members are not satisfied by that announcement, no doubt they will return to the matter at a later point in our consideration of the Bill.

I assure the hon. Gentleman that we recognise and understand his concerns. Part of the solution may be better enforcement of the existing law, as well as looking at the options for strengthening the law. I hope that the hon. Gentleman will recognise that my colleagues at the Ministry of Justice are seized upon that, and the proposals will I hope be coming forward in the near term.

Vernon Coaker (Labour, Gedling)

It is interesting, isn’t it? We can chuck a pebble in the pond and see what happens. The comments made by the hon. Member for Wycombe were intriguing after our exchange about principle and a policy proposal that then flows from ideology. He is right about property. The defence of property is an important principle on which much of our law is based. That is why we understand that there is always a need to debate clearly from time to time how much power of entry there is for people to enter property, whether it is private property in the sense of a house or a business property. The hon. Gentleman made a helpful contribution to the debate, although I understand why he will not vote for the amendment if we pressed it to a Division.

All I am giving is an example. I am not saying that we have agreed that a privacy commissioner is the right way forward, but that we could use a privacy commissioner as an example of the way in which we would have a flagship policy in the Bill from which everything else flowed. The Government have failed to provide that under the Bill, and what we have instead are about 10 or 11 different bits of their legislative powers by which they can make amendments. We have already discussed about five, and there are still four or five to go. As we said on Second Reading, the Bill continues to be one that amends rather than one that has at its core a flagship policy.

I go back to what I have said before, notwithstanding the chiding from one or two members of the Committee. With respect to the clause and other parts of the Bill, all I am saying is that the Government need to come forward with more conclusive evidence about why they are legislating in such particular ways. It is easy to say that we are protecting freedom and that we are standing up for liberty. To assert that, it is fine but, to argue it, we need evidence. We need to be able to point at some research that has been done, and an independent inquiry is a good way of doing so. The Minister talked about several years. He knows that it would not take that time, but it has made a debating point for him.

I have referred to bailiffs and squatters because they concern people. It makes no difference to the fact that people say, “Oh well, it is going happen.” The issue of bailiffs is a matter that we would have thought such a Bill could have addressed straightaway. The hon. Member for Strangford drew attention to a debate on squatters. Indeed, over the past few months there have been numerous debates about squatters, yet here we have a legislative vehicle that the Government could have used to do something about them. Under the amendment, the

“inquiry must in particular examine issues relating to—

(a) bailiffs;

(b) squatters.”

It would not just deal with powers of entry, but with associated powers. Why is it so difficult to deal with people who have illegally entered a property or, indeed, entered a property and then obtained, as the hon. Member for Strangford said, so-called squatters’ rights? No one seems to be able to do a thing about the fact that squatters are in a particular property, even the person who owns it. That is a real problem. Of course, I am not arguing for giving squatters powers of entry. I am talking about the associated powers that mean that when people have entered a property illegally, for whatever reason it sometimes seems impossible for the police, the local authority or the state in any of its manifestations to get those people out. I could have added Travellers and others to that, where, again whatever the power of entry they do or do not have, they enter somewhere illegally and it often seems impossible for people, whether that is the police or the local authority, to do anything about it.

I hear what the Minister said about how the Government intend to take this forward—that there will be a consultation relating to bailiffs and that the Ministry of Justice is already looking at the issue with respect to squatters—but I still want to press amendment 104 to a Division.

Vernon Coaker (Labour, Gedling)

My understanding is that PACE Code B deals with matters relating to powers of entry. How does that relate to clause 47?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The police powers of entry, search and seizure are governed, and will continue to be governed, by the Police and Criminal Evidence Act 1984 and the accompanying Code B. That provides the core framework for police powers and safeguards in relation to the searching of premises and the seizure of property. PACE Code B will not be affected by the code of practice provided for in the clause. Non-police agencies investigating criminal offences are required to have regard to PACE and Code B. Section 67(9) of PACE provides that:

“Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of…a code.”

However, Code B does not capture enforcement bodies with the power of entry in relation to non-criminal offences. We envisage that the code of practice provided for in the clause will cover similar ground to that in PACE Code B. That is to provide a consistent standard for the use of powers of entry. It will provide transparency for the public on what they should, and should not, expect if their premises are searched.

We propose that the code address the following points: the information enforcement bodies need to consider before applying for a warrant; what enforcement bodies need to consider before entry without a warrant; the exercise of powers of entry at a reasonable hour; the use of reasonable force to gain entry where necessary; the notice to be given to the occupier of the premises, including information about their rights; the conduct of a search; the seizure and retention of property; the actions to be taken after a search has been completed; and the maintenance of search registers.

Although we will seek to make the code as comprehensive as possible, it is inevitable that given the wide range of powers of entry and associated powers, it will not be practicable to address all of them. When, however, there are associated powers specific to particular enforcement bodies, it would be open to the relevant organisations to supplement the code with their own guidance.

The hon. Gentleman raises a relevant point in relation to PACE Code B. I hope, however, that my response has provided some clarification on the operation of the code, and equally, on the clause’s interrelationship with PACE Code B, which he is not unreasonable in raising with the Committee.

Clause 51

Vernon Coaker (Labour, Gedling)

May I ask a quick question to help my understanding of the effect of the code? Will the Minister explain the inclusion of subsections (2) and (3)? In effect, breaking the code does not of itself mean that a person is guilty of a criminal act, but the powers of entry code is admissible in evidence in any such proceedings. Will the Minister explain his thinking behind those two subsections?

James Brokenshire (Conservative, Old Bexley and Sidcup)

We obviously want to ensure that the relevant provisions of the code will be properly observed by the relevant authorities, and we will certainly be promulgating the code to the appropriate authorities and impressing upon them the requirement to have regard to its provisions. Repeated failure on the part of any individual to act in accordance with the code’s provisions could result, for example, in disciplinary action being taken against them. Further, in all criminal and civil proceedings, the code shall be admissible in evidence, as the hon. Gentleman has highlighted. Therefore, if the court considers that the enforcement body exercised its powers in a way that was not in keeping with the code, any evidence that was gathered could be considered inadmissible. That is the approach that we are adopting on clause 51.

A failure to adhere to aspects of the code of practice on the part of anyone exercising the power would not render them liable to criminal or civil proceedings, but the proposals ensure that there are protections on information that may be obtained in that way, and could relate to other codes of practice. In other words, it is to regulate utilisation of the power, and to ensure that information that could be obtained as a consequence may be inadmissible, rather than seeking to make the person criminally or civilly liable in such circumstances. The proposals afford that type of protection, but they act in a two-way manner. There is a protection for the individual officer, subject to the points that I have made about disciplinary and regulatory sanctions that may apply if there has been some sort of continued breach. A complaint could be made against, for example, a police officer, but without then making them criminally liable in relation to that act.

I hope that the hon. Gentleman understands the mechanism. In other words, if information has been obtained inappropriately protection is available; equally, if the individual concerned is acting inappropriately, an employment type of sanction may apply, rather than some sort of formal civil or criminal action.