My Lords, I have Amendments 80, 90A, 94, 96, and 97 in this group. I was hoping that this group might be an example of this House at its best, where reasonable and reasoned amendments have been tabled, the Government have seen and responded positively to them and the Bill could be improved as a result. We clearly do not all agree on everything yet, but what all sides of the House—including the Government —appear to agree on is that the Bill as drafted and passed by the other place in respect of Chapter 3 on the extraction of information from electronic devices is not fit for purpose.
I shall take my amendments first. The House of Lords Constitution Committee raised concerns about victims of crime not coming forward or withdrawing from the criminal justice process because they may have to hand over personal and sensitive data, particularly victims and survivors of violence against women and girls, including rape. Although the draft code of practice published by the Government includes guidance that suggests refusal to provide a device or to agree to the extraction of information from it should not automatically result in the closure of any inquiry or complaint—particularly in light of the dramatic reduction in charges and prosecutions for rape over the past five years—the committee recommended that safeguards that protect victims’ rights to privacy and guard against digital
extraction as a condition for continuing an investigation or prosecution should appear in the Bill rather than in a non-binding code of practice. Amendment 80 addresses the issue raised by the Constitution Committee. I am very grateful for the support of the noble Baroness, Lady Chakrabarti, in her powerful and compelling contribution.
This issue is partially addressed by government Amendment 93, which states that a person must not have been placed under undue pressure to provide the device or agree to the extraction of information from it and that a written notice must be provided which states that the person may refuse and that the investigation or inquiry will not be brought to an end merely because of that refusal. As well as being given the information in writing, the person should be told this orally and be reassured by the investigating officer. The government amendment does not go far enough.
I would go further and say that what people store on their electronic devices and share with each other has changed dramatically over the years. In particular, those from older generations may not be aware of the degree of openness with which explicit images, for example, are routinely shared using electronic devices, potentially leading prosecutors and jurors to draw unjustified conclusions about the behaviour of victims of rape or sexual assault in particular, whether they be male or female. Thankfully, most right-minded people no longer think a woman wearing a short skirt is “asking for it”, but there may be a way to go before the sharing of intimate photographs, for example, is dismissed in a similar way. That is why it is essential that victims are reassured in the way these amendments are intended to provide.
Amendment 90A makes a slightly different point and covers a similar area to that provided by Amendment 92 from the noble Lord, Lord Rosser, in relation to the extraction of information from devices used by children and adults without capacity. In relation to both groups of users, the noble Lord, Lord Rosser, suggests that a “registered social worker” give authority for the extraction of information, in the absence of a parent or guardian, whereas, in Clause 37(3)(b), the Government suggest that
“any responsible person who is aged 18 or over other than a relevant authorised person”
can give authority. Although police constables and members of staff appointed as authorised persons by chief constables would be excluded, police members of staff not authorised would not be excluded.
From my own professional experience, I know that it is often difficult to get hold of parents or guardians or to get them to co-operate, for example by attending a police station when their child is in custody. Equally, it is difficult to get hold of a social worker, particularly outside office hours, where there may be only one or a few social workers on call, dealing with the whole range of social work responsibilities—hence the “appropriate adults” scheme was established to look after the interests of children and vulnerable adults in custody. Appropriate adults are volunteers, recruited through local schemes, who are selected for their ability to act with independence from the police. Schemes
take into account volunteers’ attitudes and motivations and any other roles that they may hold. They undergo training in the appropriate adults role and undergo a criminal record—DBS—check, although a criminal record will not necessarily act as an automatic bar.
Amendment 90A seeks to find a compromise between allowing any responsible person aged 18 or over, including potentially those employed by the police, to give authority for the handing over and extraction of data from a child’s or vulnerable adult’s electronic device and the registered social worker who is not always readily available, proposed by the noble Lord, Lord Rosser, in his Amendment 89.
I apologise—this is a long group. Amendment 96 seeks to increase the authority level for the extraction of information to a senior officer—at a rank where someone of that rank is normally on duty 24 hours a day, seven days a week, and readily available—who is independent of the investigation and can objectively assess whether the conditions that allow for the extraction of information have been met. There are precedents across policing: for example, custody officers or those authorising the deployment of covert surveillance, where someone independent of the investigation makes these kinds of decisions.
Amendment 97 is again intended to provide parliamentary scrutiny of guidance, as is Amendment 102, proposed by the noble Lord, Lord Rosser, to which I have added my name. I agree wholeheartedly with my noble friend Lord Beith’s Amendment 103 that the restrictions on the exercise of power to extract information in relation to confidential information must be in the Bill and not simply contained in regulations. I understand the reasons for wanting to exclude immigration officers from the list of authorised persons who can extract information from electronic devices, as proposed by the noble Lord, Lord Rosser, in his Amendment 107.
On immigration officers, we share the belief that there should be a firewall between criminal investigations and immigration enforcement, to the extent that details about the immigration status of victims should not be passed to the immigration authorities but should be dealt with elsewhere. I can envisage circumstances where immigration officers may need to download information from electronic devices—for example, to tackle people smuggling—although I accept what the noble Lord, Lord Rosser, said, which was that that should perhaps be a matter for the police rather than immigration officers.
I also accept the very important point made by the right reverend Prelate the Bishop of Bristol about the particular vulnerability of asylum seekers and their lack of knowledge of what the law allows and does not allow immigration officers to do, and how we need many more safeguards for asylum seekers in this provision. We also wholeheartedly agree with Amendment 106A regarding requests for third-party material. If I had not been overwhelmed by the volume of amendments added to the Bill every day, I would have added my name to that amendment.
We all in different ways have attempted to provide a more robust but workable regime around the extraction of information from mobile devices. The best way forward would be for all noble Lords, including the
Minister, to withdraw their amendments, for the Minister and officials to meet with us before Report, and for officials to take the best from each of these amendments and those discussions, to produce a single set of amendments to which hopefully we can agree, rather than having to put down amendments on Report to the government amendments agreed in Committee. Taking the debate offline will save time on the Floor of the House on Report, when the agreed amendments could simply be nodded through. However, it appears that the Labour Opposition are content to allow the government amendments to be agreed at this stage, despite the clear differences between what they are proposing and the government amendments.
The noble Lord, Lord Hayward, made the important point, as we did on these Benches when this House debated the Domestic Abuse Bill, that these issues also affect men. The noble Lord also praised the police, who are in a very difficult position, which the noble Lord, Lord Anderson of Ipswich, alluded to, where they find themselves under pressure from the Crown Prosecution Service to go further than maybe even police officers may be comfortable going in terms of accessing personal information from victims’ phones. I repeat the question asked by the noble Lord: who speaks for the Crown Prosecution Service in this debate?
I studied politics at university, I was a very senior police officer for years, I ran for Mayor of London twice and I have been a member of your Lordships’ House for over eight years, but I still do not understand politics. Suffice it to say that, without Labour support, there is no point in dividing the Committee if the Government move their amendments formally at this stage.