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Archive for June, 2011

Tuesday
Jun 7,2011

The Committee Stage consideration in the House of Lords of the Police Reform and Social Responsibility Bill grinds on.  The fourth day discussions have not been comfortable for Government Ministers – the debates were all about detailed points where the Bill is silent, inadequate or flawed.

Here, for example, are the exchanges on whether there should be a standards system applying to the conduct of elected Police and Crime Commissioners, which ended with the Minister suggesting that Mayor Boris Johnson should have been arrested for perverting the course of justice:

“Baroness Browning: ….. Perhaps I can turn to the amendments; there have been a lot of them. I shall begin with Amendments 123AB, 139A, 148C, 148D, 149B, 149C and 149D. Those amendments envisage an entirely different approach to handling complaints against the police and crime commissioner. They would mean that a code of conduct for a PCC would be drawn up centrally and that police and crime panels would hold PCCs to account against it. It would even allow a police and crime panel to go as far as removing a directly elected person with a public mandate from their office and to suspend the PCC indefinitely while the allegation was investigated.

I cannot support the amendments because they would enable the police and crime commissioner to be removed from office without recourse to the public who elected him or her. A PCC will be elected by the public in their force area and will be accountable directly to that public for the decisions that it makes. Of course, that is if the Bill returns in a different form from the one that is before your Lordships tonight. I add that caveat. The commissioner cannot be removed by the police and crime panel for a perceived breach of a centrally defined code of conduct. If the PCC makes the wrong decisions, the panel will ensure that the public are informed, and the public will remove them at the ballot box. That is at the heart of the matter, and something on which probably we will not agree.

Baroness Henig: ….My amendment suggests that expected standards of behaviour should be set out in a code of conduct drawn up by the Committee on Standards in Public Life and should apply to commissioners and panel members. A later amendment suggests that a commissioner or a panel member must sign this code of conduct and agree to abide by it within a month of taking up office. Failure to do so would mean disqualification. Therefore, the code would have real force.  …

Baroness Harris of Richmond: I agree completely that the standards of conduct to be established for the PCCs are utterly inadequate in the Bill as presently drafted. Her amendments to address them make absolute sense. I also agree that the current provisions are inadequate for some of the more politically motivated complaints that are likely to be made. Just because they are political, it does not necessarily mean that they are by definition spurious, although of course many of them may be. A proper and robust mechanism for dealing with them is essential, but the Bill does not currently provide for that. More serious in many ways, though, is the lack of clarity about how complaints from ordinary members of the public are going to be dealt with or how generally poor conduct is going to be handled. I congratulate the noble Baroness, Lady Henig, on the solution that she has set out. It manages to balance properly the independent oversight of these matters with an appropriate and stronger role for the panel. I therefore support the proposals wholeheartedly. …

Lord Harris of Haringey: My Lords, I apologise to those Members of the House who are keen to move on to the other debate, but I have to say that it is quite strange that we moved on at this point to this group of amendments, given their sheer number, complexity and importance. I am afraid that I have four issues to raise and, although I will abbreviate what I would otherwise have said, I think that they are important.

The first is that there must be a clear and robust framework for the conduct of people who are either elected police and crime commissioners or, in the case of London, the mayor or the deputy mayor responsible for policing and crime. The same applies to whatever other structure we may have, whether it be police and crime commissions or anything else. The reason why we must have a robust and clear set of guidelines for conduct is that potentially very serious problems could arise. Although provision is made in the Bill to deal with the most extreme examples, it does not cover the sort of things that are much more likely to happen. If an elected police and crime commissioner, having been briefed by a chief officer of police about a particular investigation, takes it upon himself or herself to telephone the subject of the investigation and talk to them about it, how will that be dealt with? Where are the guidelines and rules of conduct to say that that is not appropriate behaviour for such a person?

I find it extraordinary that there is no mechanism for dealing with such an event. I also find it extraordinary that there are no mechanisms for dealing with what are perhaps slightly less serious matters, or indeed for providing a framework so that the people who are elected understand what is and is not permissible. Things of this sort could happen, so there is a need for a robust and proper framework to deal with them. I am extremely grateful to my noble friend Lady Henig for tabling this group of amendments and for giving us an opportunity, albeit it at a rather inappropriate moment, to debate these points. There has to be a framework for conduct, whether it is the standard structure as set out in these amendments or something else. However, there must be an explicit code of conduct. ….

Baroness Browning: A lot of concern has been expressed about the police and crime commissioner and what would happen if they did something outwith the law or acted in a certain way. The noble Lord, Lord Harris of Haringey, gave an example—that they might ring somebody with confidential information that had been given by the chief constable. That could be construed as perverting the course of justice, which would be a criminal offence subject to investigation by the IPCC.

Lord Harris of Haringey: I am sorry to hold up noble Lords who wish to speak in the debate that follows, but my example was not posed as a hypothetical incident. It happened in London. The present Mayor of London was briefed about an operation and phoned the person who was the subject of the investigation. I think it would have been disproportionate for the Mayor of London to be prosecuted, as the Minister suggests, for trying to pervert the course of justice. It would have been disproportionate to something that was ill thought out and a spur of the moment action by the Mayor of London to phone somebody that he regarded as a chum. Because there was in existence a robust, standard structure, with clear guidance and a code of conduct as to what was or was not appropriate, it was possible to hold the Mayor of London to account and go through a process whereby, I am sure, he would not do the same thing again. But if the only answer is to arrest the police and crime commissioner for perverting the course of justice, I suspect that we are getting ourselves into a very unfortunate tangle.

Baroness Farrington of Ribbleton: My Lords, I suggest that the Minister looks at a case in Lancashire, where the father of somebody accused of an offence telephoned a friend who happened to be in the same organisation—I do not need to go into detail—who then telephoned a friend of his who was in the same organisation, who then telephoned the chief constable, who then telephoned the police officers involved with the original charge. The charge was reduced as a result of the call from the chief constable, and the person got off from the lower charge. In the middle of all that could have been one of these commissioners. In the end, people lost their jobs, but there was not actually a crime committed anywhere in that chain of offences.

Baroness Browning: I am very grateful to the noble Baroness. I realise that the House feels under some time pressure at the moment. I would say to the noble Lord, Lord Harris, that the case to which he refers relating to the Mayor of London was one in which the person concerned was aware of the investigation, but I do not want to delay the House too much on that. It is important to state that the police and crime commissioner will be regarded as a Crown servant and subject to the Official Secrets Act.

I have to say to the noble Baroness, Lady Henig, that I am afraid that since I last said this half an hour ago I have not changed my mind about the code of conduct for police and crime commissioners. The House heard what I said about that at the time. I have concerns around that.”

Sunday
Jun 5,2011

High-level legal guru, Stewart Room, gave an excellent presentation at last week’s East-West Institute Global Cyber Security Summit.  In it he called for a “general obligation for security”, saying:

“I believe that holders of sensitive data, the controllers of important networks, systems and infrastructures – and their supply chains – should face a clear legal requirement to keep these assets safe and secure. As well as describing the obligation, this general security law should describe the consequences of failure.”

He pointed out that:

“It is naive to think that all relevant actors will do what is necessary to protect these assets without a clear steer from the law. Ignorance, laziness, apathy, short sightedness and greed are all powerful counterweights to enlightened self interest.”

He also highlighted the dangers of simply addressing the problem through the prism of the protection of personal data only.  Intellectual property is currently being leeched from corporate data systems all over the world – an issue repeatedly referred to at the Summit.  Likewise the vulnerability of national infrastructure systems – including power grids and water supplies – is also now increasingly apparent.

He warned that:

“In the UK and most of the rest of Europe the law for security is effectively left to reside in the domain of privacy and data protection law. This is a grave mistake. …  it gives the mistaken impression that the law only sees security as being important in the context of the handling of personal data. Of course, we all know that the substance of security extends much further that this. The impact of this problem is worsened by the fact that far too many people and organisations do not take data protection law seriously. Thus, the law is not properly driving behaviours.”

And there may be unintended consequences:

“This gives effective ownership of the field to people who are the least competent to manage it. I am talking about a small cadre of data protection regulators and bureaucrats, who are so slanted toward privacy that they may unwittingly encumber us with anti-security policies, which could jeopardise the health of cyberspace, our economies and our societies.”

He concluded byasking “what will a general obligation for security look like?”:

“Aside from removing the issue from the privacy and data protection domain and describing the nature of the obligation to secure assets and the penalties that may flow in breach, a general obligation for security will capture:

1. Critical definitions. We need to agree the parameters and make sure that we are all talking the same language.

2. The traditional “cyber crime” subject matter, dealing with the criminalisation and prosecution of unacceptable behaviours of hackers, botnets and others whom attack information and information systems. The interests of law enforcement should be properly served.

3. The role of the private sector cyber security industry, so that innovation in IT solutions can continue. We are totally reliant upon the private sector for security solutions, so we must give it our full support.

4. Intelligence sharing between the public and private sectors and across geographical boundaries.

5. The need for identification measures for people and machines operating in cyberspace. Privacy should not provide a cloak for criminals and anti-social behaviour.

6. The right for people and organisations under cyberattack to take offensive action in their defence. This is probably the most controversial point. But we need to ask ourselves whether it is morally right to tie the hands of those under attack. And we need to be sure that we do not open Pandora’s box.”

Whilst ideally this needs a solution in international law, a good start would be made by legal changes in this country to establish a better and more robust framework, whilst British Ministers argue for European-wide changes via Brussels and press the case through the G8 and G20 fora.

There was a palpable sense of urgency about the need for change at last week’s summit.  I hope it was felt by Francis Maude MP, who is apparently now the Minister in charge of cyber-security, and that he takes it back to his Government colleagues.

Sunday
Jun 5,2011

It is no doubt wounding for Universities Minister, David Willetts, to read that his former Oxford tutor says “I have no confidence in him.”
There are plenty of good reasons for not having confidence: the 80% cut in teaching funds, axing investment in research, and the trebling of student tuition fees for starters.
However, for an Oxford academic to claim that academics like him are better politicians than someone who has been repeatedly elected as an MP since 1992 looks like a bad case of pot and kettle syndrome.

Wednesday
Jun 1,2011

I am attending the Worldwide Security Summit being held at the QEII Conference Centre in London.
It is currently being addressed by Dr R Chandrashekar, the Secretary of the Department of Information Technology in India. His address has been very wide-ranging, but I was much taken by the way in which ha acknowledged almost as an aside a massive vulnerability to the world economy before moving quickly on.
After spending several minutes outlining the increasing dependence of the world on the internet, including government and commercial systems. He then pointed out that, of course, the internet only functions because of the existence of a small number of undersea data cables, connecting the major continents together. These have been damaged from time to time, for example, by shipping and by natural disasters. These have produced significant, if (so far) short-term, disruptions. For those wanting to cause major problems for the world economy the implications are unfortunately obvious …….